.* 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


b^ACULTY  LIBBAB^' 


REPORTS 


CASES 


ADJUDGED   IN 


THE  SUPREME  COURT 


PENNSYLVANIA. 


BY 

WILLIAM    RAWLE,    JUN. 

WITH  NOTES  REFEERIN&  TO  CASES  IN  THE  SUBSEQUENT  REPORTS. 

BY 

WILLIAM  WYNNE  WISTER,  JUN., 

CONTINUED  BY 

ELLIS  AMES  BALLARD.' 


Vol.  I. 


PHILADELPHIA : 

T.  &  J.  W.  JOHNSON  &  CO., 

LAW  BOOKSELLERS,  PUBLISHERS,  AND  IMPORTERS, 

No.  535  Chestnut  Street. 

1885. 


ICFf 
4-5 


Entered  according  to  the  Act  of  Congress,  in  the  year  1885, 

BT  T.  &  J.  W.  JOHNSON  k  CO. 

In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


JUDGES 


SUPREME  COURT  OF  PENNSYLVANIA. 


John  Bannister  Gibson, 

MoLTON  C.  Rogers,  . 

Charles  Huston, 

John  Tod, 

Frederick  Smith,  (appointed  the  31st  of 

January,  1828,  in  the  place  of  Thomas 

Duncan,  Esq.,  deceased,) 


Chief  Justice. 


Justices. 


Amos  Ellmaker,  Esq.,  Attorney-General  (appointed  May, 
1828.) 


778508 


Digitized  by  tine  Internet  Arciiive 

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Iittp://www.arcliive.org/details/casesadjudgedins01penniala 


PREFACE. 


Mr.  Wister's  edition  of  Rawle's  Reports,  which  appeared  in 
1869,  contained  the  annotations  down  to  5  P.  F.  Smith.  The 
present  editor  has  followed  the  cases  through  the  subsequent 
reports,  including  7  Outerbridge  and  14  Weekly  Notes  of 
Cases,  and  has  added  short  notes  where  the  importance  of 
the  subject  or  the  subsequent  course  of  the  law  has  made  it 
advisable. 

Mabch,  1885. 


TABLE  OF  OASES. 


[References  are  to  the  top  paging.] 


Adams  v.  Pennsylvania  Insurance 

Company,  .    .' 97 

Adlum  V.  Yard, 163 

Allen,  Stoddart  v 258 

Anderson,  Freytag  v 73 

Appeal  of  John  Torr,     .....    76 

Arnold  v.  Gorr, 223 

Ash,  Biddle's  Executors  v.     ...    78 
Aurand,  The  Commonwealth  v.    .  282 

B. 

Bank  of  Pennsylvania  v.  Winger,  295 

Barnet  v.  Ihrie, 44 

Barton  v.  Smith, 403 

Benedict,  M'Clay  v 424 

Biddle's  Executors  v.  Ash,     ...    78 

Bolin  V.  HufFnagle,      9 

Bonsall's  Appeal,  Case  of,  ...    .  266 
Boraef,  Farmers'  and  Mechanics' 

Bank  v 152 

Brenneman,  The  Commonwealth  v.  811 

Brindley,  Duffield  v 91 

Brown  v.  Dysinger,      408 

Browne,  Floyd  v 121 

Brown,  Milliken  v 391 

Brubacker,  Roop  v 304 

Butz  V.  Ihrie, 218 


C. 

Caldwell  v.  Stileraan,  .  . 
Caldwell  v.  Thompson,  . 
Campbell,  Innis  v.  .  .  . 
Carr,  Williams  v.  .  .  . 
Case  of  Bonsall's  Appeal, 
Cheever  and  Fales  v.  Walker, 
Clarkson,  The  Commonwealth 
CoUam  V.  Hocker,  .  .  . 
Commonwealth  v.  Aurand, 

V.  Brenneman, 
V.  Clarkson, 
V.  Conard,  . 
V.  Leeds,    . 
M'Lenachan 
Simmons  v. 
V.  West, 
Conard,  The  Commonwealth 
Cooke  V.  Rein  hart,  .... 
Cope  V.  Corjjova,  ... 


212 
370 
373 
420 
266 
126 
291 
108 
282 
311 
291 
249 
191 
357 
142 
29 
249 
317 
203 


PAGE 

Cordova,  Cope  v 203 

Crawford  v.  Jackson, 427 

D. 

Davis  V.  Shoemaker, 135 

Diechman  v.  Northampton  Bank,      54 

Dolan,  Lancaster  v 231 

Dowdel,  Hartman  v 279 

Duffield  t;.  Brindley, 91 

Dysinger,  Brown  v 408 

E. 

Eberle  v.  Mayer, 366 

Edmiston,  Mevay  v 457 

Ehrenzeller  v.  The  Union  Canal 

Company,      181 

Elliott  f.  Walker, 126 

F. 
Farmers'  and  Mechanics'  Bank  v. 

Boraef, 152 

Felton,  Langer  v 141 

Ferguson,  Otty  v 294 

Fisher,  Kalbach  v 323 

Fisher,  Mechanics'  Bank  v.    .   .    .  341 

Fisher,  Pastorius  v 27 

Fisher,  Streaper  v 155 

Floyd  V.  Browne, 121 

Fox  V.  Wood, 143 

Freytag  v.  Anderson, 73 

G. 

Geiger  v.  Welsh, 349 

Gibson  v.  Todd, 452 

Gonzalus  v.  Liggitt, 426 

Gorr,  Arnold  v 223 

Griffith  V.  Reford, 196 

H. 

Hartman  v.  Dowdel, 279 

Hocker,  CoUam  v 108 

Huffiiagle,  Bolin  v 9 

I. 

Ihrie,  Barnet  v 44 

Ihrie,  Butz  v 218 

Innis  V.  Campbell, 373 

Ives,  Philips  v 36 

vii 


VIU 


TABLE  OF  CASES. 


J. 

Jackson,  Crawford  v. 


PACK 

.427 


K. 

Kalbach  v.  Fisher, 323 

Kershaw  v.  Supplee, 131 

Kessler  v.  M'Conachy, 435 

L. 

Lancaster  t>.  Dolan, 231 

Langer  v.  Felton, 141 

Leeds,  The  Commonwealth  v.   .    .  191 

Lee  V.  Wright,      .149 

Libenguth,  Moser  v 255 

Liggitt,  Gonzalus  v 426 

-Lightner,  Wiket> 289 

M. 

Madeira,  Kickert  v 325 

Mayer,  Eberle  v 366 

M'CIay  V.  Benedict,        424 

M'Conachy,  Kessler  t 435 

M'llroy  V.  M'llroy, 433 

M'Lenachan,The  Commonwealth  i;.357 
Me«:hanics'  Bank  v.  Fisher,    .    .    .  341  . 

Metzgar  v.  Metzgar, 227 

Mevay  v.  Edmiston, 457 

Mickley,  SrauU  v.    . 95 

Middletown  and  Harrisburg  Turn- 
pike Road  Company  v.  Watson,  330 

Milliken  v.  Brown, 391 

Moser  v.  Jjibenguth, 255 

Myers  v.  White, 353 

N. 
Korthampton  Bank,  Dlechman  v.     54 


O. 


Otty  V,  Ferguson, 
Owens,  Shields  v. 


294 
61 


P. 


Parker,  Willard  v 448 

Pastorius  v.  Fisher,      27 

Pennsylvania  Insurance  Company, 

Adams  v 97 

Petition  of  Henry  Shoemaker,  .  89 
PJiiladelphia  Bank,  Rham  v.  .  .  335 
Philips  V.  Ives, 36 

R. 

Rham  v.  The  Philadelphia  Bank,  335 
Bedford,  Griffith  v 196 


PAOB 

Reinhart,  Cooke  v 317 

Reitenbach  v.  Reitenbach,     .    .    .  362 

Rickert  v.  Madeira, 325 

Ripple  V.  Ripple, 386 

Roiop  V.  Brubacker, 304 

S. 

Seitzinger  t'.  Weaver,  .    .    •    .^.    .  377 

Shields  v.  Owens, 61 

Shoemaker,  Davis  v 135 

Shoemaker's  Petition, 89 

Simmons  v.  Commonwealth,  .    .   .  142 

Smith,  Barton  v.  . 403 

SmuU  V.  Mickley 95 

Stileman,  Caldwell  «..■..•  .    .    .212 
Stoddart  v.  Allen,     .......  258 

Streaper  v.  Fisher, 155 

Strickland,  Wilbur  t).  ......  468 

Supplee,  Kershaw  v.   .   .   .   .    .   .  J  31 

T. 

Thomas  v.  Thomas,      112 

Thompson,  Caldwell  v 370 

Todd,  Gibson  v 452 

Torr's  Anpeal,      ........        76 

U. 

Unger  v.  Wiggins, 331 

Union  (^anal  Company,  Ehrenzel- 
ler  t).  .    . 181 

»,,.,  W. 

Walker,  Cheever  and  Fales  v.  .   .  126 

Walker,  Elliott  v 126 

Watson,  The  Middleton  and  Har- 
risburg Turnpike  Road  Com- 
pany V 330 

Weaver,  Seitzinger  v 377 

Welsh,  Geiger  v 349 

West,  Commonwealth  v.     ....    29 

White,  Myers  v 353 

Wiggins,  Unger  v 331 

Wike  V.  Lightner, 289 

Wilbur  V.  Strickland,      458 

Willard  v.  Parker, 448 

Williams  v.  C&rr, 420 

Winger,  The  Bank  of  Pennsylva- 

vania  v 295 

Wood,  Fox  V 143 

Wright,  Lee  V 149 

Y. 
Yard,  Adlum  » 163 


CASES 


IK 


THE  SUPREME  COURT 


PENNSYLVANIA. 


EASTEEN  DISTRICT— DECEMBER  TEEM,  1828. 


[Philadelphia,  December  29,  1828.] 

Bolin  and  Others  against  Huffnagle,  Assignee,  &c. 

If  goods  are  shipped  on  credit,  in  a  foreign  port,  on  board  the  consignee's 
own  ship,  the  master  of  which  signs  a  bill  of  hiding,  by  whicli  they  are  to  be 
delivered  to  his  owner,  the  transitm  is  at  an  end  by  delivery  to  the  master ; 
and  the  consignor  cannot  afterwards  stop  the  goods,  in  case  of  the  insolvency 
of  the  consignee  before  their  arrival 

This  was  an  action  of  replevin  brought  in  this  court  by 
Messrs.  BoHn,  Leach,  and  Gatewood,  against  Huffnagle,  as- 
signee of  Messrs.  Sperry  and  Stansbury,  for  a  quantity  of  wines 
and  raisins.  The  following  case  was  stated  for  the  opinion  of 
the  court : 

In  September,  1822,  the  plaintiifs,  in  pursuance  of  an  order 
frofn  Messrs.  Sperry  and  Stansbury,  dated  the  15th  of  July, 
1822,  shipped  at  Malaga  in  Spain,  on  board  the  brig  Pleiades, 
then  belonging  to  the  said  Sperry  and  Stansbury,  and  commanded 
by  Charles  King,  master,  in  their  employment,  certain  ]\Ialaga 
wines  and  raisins,  consigned  to  the  said  Sperry  and  Stansbury, 
merchants,  at  Philadelphia.  On  the  31st  of  Octol)er,  in  the 
same  year,  before  the  said  vessel  arrived  at  Philadelphia,  and 
before  any  intelligence  was  received  of  the  said  shipment,  the 
said  Sperry  and  Stansbury  became  insolvent,  and  executed  a 
general  assignment  to  the  defendant,  for  the  benefit  of  their 
creditors.     On  the  28th   of  November,  in   the  same  year,  the 

9 


9  SUPREME  COURT  {Philadelphia, 

[Bolin  and  others  r.  Huffiiagle,  Assignee,  &c  ] 

said  vessel  arrived  in  the  Delaware,  and  on  that  day  was  de- 
tained at  Newcastle,  in  the  state  of  Delaware,  by  the  service  of 
a  writ  of  replevin,  at  the  suit  of  the  plaintiffs,  of  which  the 
defendant  and  Sj)erry  and  Stansbury,  had  notice  at  Philadelphia  ; 
and  the  said  Captain  King  was  notified  by  R.  Gatewood,  one  of 
r*inl  *'^^  plaintiffs,  not  to  deliver  the  goods.  It  *was  then 
L  -I  agreed,  that  the  said  wine  and  raisins  should  be  sold  under 
the  direction  of  both  parties,  and  the  net  proceeds  of  sale 
deposited  in  bank  to  the  credit  of  the  respective  attorneys,  to 
await  the  decision  of  the  question,  whether  the  said  property 
and  the  proceeds  thereof  belong  to  the  said  plaintiffs  or  to  the 
said  defendant  ?  The  net  proceeds  of  the  said  wine  and  raisins 
have  accordingly  been  deposited  in  bank  to  the  credit,  &c.  ;  and 
it  is  agreed  that  the  court  shall  enter  judgment  for  the  party  whom 
they  shall  consider  to  be  entitled  to  said  proceeds. 

The  order  referred  to  in  the  <3ase  stated,  was  as  follows : 

"Philadelphia,  July  16ih,  1822. 
"  Malaga. 

"  Messrs.  Bolin,  Leach,  and  Gatewood. 
"  Gentlemen : 

"  Your  Mr.  Gatewood,  we  have  had  the  pleasure  to  see,  and 
received  his  assurance  of  your  exertions  to  procure  a  freight  for 
our  brig,  should  she  proceed  to  Malaga. 

"We  should  prefer  a  freight  to  any  part  of  the  United 
States,  not  farther  east  than  New  York,  or  south  than  Norfolk  ; 
but,  if  a  good  freight  offers  for  New  Orleans,  we  have  no  objec- 
tions. If  direct  to  Philadelphia,  we  have  no  objections,  as  we 
informed  your  partner,  Mr.  Gatewood,  to  receive  on  our  account 
to  the  extent  of  about  three  thousand  dollars,  in  first  quality 
dry  Malaga  wine,  cask  raisins,  and  bloom  raisins,  an  equal  pro- 
portion of  each,  for  which  we  will  accept  your  draft  in  his  favour 
at  four  months'  sight. 
"  We  remain  &c., 

(Signed)  "  Sperry  and  Stansbury.." 

The  following  is  an  abstract  of  the  bill  of  lading  : 
"  S.  S.  Shipped  by  Bolin,  Leach,  and  Gatewood,  in  and  upon 
the  Pleiades,  Charles  King,  master,  now  in  the  mole  of  Malaga, 
bound  to  Philadelphia, 

50  qr.  casks  Malaga  wine,  &c.,  &c. 
to   be  delivered   at  the   port    of   Philadelphia,   unto   Messrs. 
Sperry    and    Stansbury,   or    to   their    assignees,   they   paying 
freight  for  the  said  goods  nothing,  being  the  owners  of  the  said 
vessel. 

"Dated  in  Malaga,  the  23d  of  September,  1822. 

(Signed)  "Charles  King." 

10 


Dec.  29,  1828.]      OF  PENNSYLVANIA.  10 

[Bolin  and  others  v.  Huffhagle,  Assignee,  &c.] 

Abstract  of  the  invoice  : 

"  Invoice  of  raisins  shipped  on  board  the  brig  Pleiades, 
Charles  King,  master,  bound  to  Philadelphia,  by  order  of 
Horatio  Sprague,  Esq.,  for  account  of  risk  of  Messrs.  Sperry 
and  Stansbury  of  Philadelphia. 

"  S.  S.  100  casks  of  sun  raisins,  &c.,  &c. 
(Signed)  "  Malaga,  September  22,  1822. 

"  Bolin,  Leach,  and  Gatewood." 


[*11] 


*Dunlap,  for  the  plaintiifs. — The  insolvency  of  Messrs. 
Sperry  and  Stansbury,  before  the  goods  purchased  by 
them  came  into  their  possession,  gave  to  the  plaintiifs  a  right  to 
stop  them  in  transitu.  This  right,  founjled  on  principles  of 
natural  justice,  was  at  an  early  period  established  in  equity.  It 
was  adopted  so  long  ago  as  1690,  in  the  case  of  Wiseman  v.  Van- 
deput,  2  Vern.  203,  which  in  its  general  principles  has  never 
been  departed  from.  Snee  v.  Prescott,  1  Atk.  245,  decided  in  the 
year  1743,  is  a  leading  case;  in  which  Lord  Hardwicke  estab- 
lished the  rule,  that  the  vendor  might  resume  the  possession  of 
goods  consigned  to  the  vendee,  before  delivery,  in  case  of  the 
bankruptcy  of  the  vendee  :  and  in  1761,  in  D'Aquila  v.  Lambert, 
Ambler,  399,  the  rule  was  again  adopted ;  and  Lord  Northing- 
ton  declared,  that  it  has  been  determined  on  the  most  solid  rea- 
sons, that  the  goods  of  one  man  ought  not  to  be  applied  to  the 
payment  of  another  man's  debts.  This  doctrine,  originally  de- 
rived from  equity,  is  now  fully  established  at  law,  as  will  be 
found  in  Abbott  on  Shipping  (Story's  Ed.)  Part  3,  Ch.  9,  where 
the  cases  are  collected,  and  their  principles  explained.  In  such 
cases  the  question  always  is,  whether  or  not  the  transit  is  ended ; 
for  until  it  be  ended,  the  vendor's  right  to  stop  the  goods  con- 
tinues. The  result  of  all  the  decisions,  from  1690  down  to  the 
present  day  is,  that  nothing  short  of  actual  possession  by  the 
vendee,  will  divest  the  unpaid  vendor  of  his  right  to  reclaim  the 
goods.  Even  delivery  to  a  carrier,  or  warehouseman,  or  a  packer 
appointed  by  a  consignee,  or  a  wharfinger  who  receives  them 
on  the  part  of  the  consignee,  to  be  forwarded  to  him,  leaves  the 
property  subject  to  this  right  of  the  consignor ;  nor  is  it  affected 
by  part  payment  of  the  price.  Hodgson  v.  Loy,  7  T.  R.  440 ; 
Fiese  v.  Wray,  3  East,  93 ;  Oppenheim  v.  Russell,  3  Bos.  & 
Pull.  42 ;  Stokes  v.  La  Riviere,  and  Hunter  v.  Beal,  cited  in  3 
T.  R.  466.  In  the  latter  of  these  cases  Lord  Mansfield  was 
clearly  of  opinion,  that  although  the  goods  might  be  legally  de- 
livered to  the  vendee  for  many  purposes,  yet  for  this  purpose, 
there  must  be  an  absolute,  actual  possession ;  they  must  come  to 
the  corporate  touch  of  the  vendee,  otherwise  they  may  be  sto])ped 
in  transitu:  delivery  to  a  third  person,  to  be  conveyed  to  him,  is 

11 


11  SUPREME  COURT  [Philadelphia, 

[Bolin  and  others  v.  Huffiiagle,  Assignee,  &c.] 

not  sufficient.     It  is  true  that  in  Ellis  v.  Hunt,  3  T.  R.  464,  the 
transit  was  considered  as  ended  before  actual  delivery ;  but  the 
goods  had  arrived  in  London,  and  been  marked  with  the  con- 
signee's private  mark  ;  which  made  it  the  strongest  possible  case 
of  constructive  delivery.    The  general  principles  of  the  doctrine, 
as  previously  established,  were,  however,  fully  supported  by  the 
unanimous  opinion  of  the  judges.     The  case  of  Boehtlinck  v. 
Inglis,  3  East,  381,  is  much  in  point.   There,  a  shij)  was  chartered 
for  a  voyage  to  Russia,  and  goods  were  shipped  on  account,  and 
at  the  risk  of  the  freighter,  to  whom  bills  of  lading  and  invoices 
of  the  cargo  were  sent ;  and  it  was  held  that  delivery  on  board 
a  ship  thus  chartered,  did  not  divest  the  consignor  of  his  right  to 
r*-]  9-1    stop  the  goods  on  their  way  to  the  vendee,  *in  case  of  his 
I-       -I    insolvency  at  any  time  before  actual  delivery,  any  more 
than  if  they  had  been  delivered  on  board  a  general  ship  for  the 
same  purpose.     But  the  very  question  now  under  consideration 
was  determined  in  Stubbs  v,  Lund,  7  Mass.  Rep.  453,  by  Chief 
Justice  Parsons,  who  decided  that  where  a  merchant,  in  pur- 
suance of  a  previous  general  agreement,  had  shipped  goods  on 
credit  to  one,  who,  after  the  shipment  became  insolvent,  the 
shipper  had  a  right  to  stop  the  goods  in  transitu.     The  right  of 
stopping  in  transitu,  goods  shipped  on  the  credit  and  at  the  risk 
of  the  consignee,  continues,  according  to  that  case,  until  they 
come  into  his  actual  possession,  at  the  end  of  the  voyage,  unless 
he  has  previously  sold  them  and  assigned  the  bill  of  lading  to  the 
purchaser.     This  doctrine  was  considered  as  applicable,  as  well 
to  the  case  of  a  ship  hired  or  owned  by  the  consignee,  as  to  that 
of  a  general  ship,  wherever  the  actual  possession  of  the  goods  by 
the  consignee  is  provided  for  by  the  bill  of  lading.   If,  however, 
the  goods  are  shi])ped  for  a  foreign  market,  and  are  not  to  be 
transported  to  the  consignee,  the  right  to  stop  in  transitu  ceases 
on  the  shipment.     In  Ilsley  v.  Stubbs,  9  Mass.  Rep.  65,  the  doc- 
trine of  stoppage  in  transitu  again  came  under  the  consideration 
of  the  court,  when  the  principles  laid  down  by  Chief  Justice  Par- 
sons in  the  case  just  cited,  were  adopted  and  enforced  by  Sewall,  J. 
And  in  Scholfield  v.  Bell,  14  Mass.  Rep.  40,  Parker,  C.  J.,  de- 
clares, that  the  consignor  may  at  any  time  before  the  actual  de- 
livery of  the  goods  aox;ording  to  their  destination,  rescind  the  con- 
tract, and  resume  the  property,  in  prejudice  of  any  creditor  of  the 
consignee,  and  even  against  assignees  in  the  case  of  bankruptcy. 

Lowber  and  Binney,  for  the  defendants. 

That  there  is  no  doctrine  more  artificial  than  that  of  stoppage 
in  transitu,  is  proved  by  the  inconsistencies  into  which  the 
courts  have  fallen  in  relation  to  it,  and  the  conflict  of  opinion  in 
respect  to  its  origin.     Those  who  have  thought  most  upon  the 


Dee.  29,  1828.]      OF  PENNSYLVANIA.  12 

[Bolin  and  others  v.  Huffnagle,  Assignee,  &c.] 

subject,  have  had  the  greatest  difficulty  in  discovering  the  source 
from  which  it  sprang.  Some  have  referred  it  to  e(juity,  otliers 
to  law,  while  Lord  Hardwicke  put  it  upon  neither  equity  nor  law, 
but  the  custom  of  merchants  ;  and  if  such  a  mind  as  his  was  per- 
plexed with  the  doctrine,  as  it  appears  to  have  been  in  the  case 
of  Snee  v.  Prescott,  1  Atk.  245,  it  must  have  been  because  no 
good  reason  could  be  found  at  the  bottom  of  it.  Its  origin  is  to 
be  traced,  rather  to  a  supposed  feeling  of  natural  justice,  than 
to  any  legal  source.  But  even  upon  this  foundation,  it  cannot 
be  supported ;  for  whatever  may  be  the  impulse  in  favor  of  one 
who  has  parted  witli  his  goods,  without  having  received  the  price 
of  them,  a  disciplined  and  reflecting  mind,  can  perceiv^e  no  more 
justice  in  protecting  the  rights  of  him  whose  goods  are  on  their 
way  to  the  vendee,  than  of  him,  whose  property  lias  come  into  his 
possession.  In  point  of  natural  justice,  they  stand  upon  equal 
ground.  Both  have  parted  with  their  goods  on  the  credit  of  the 
vendee,  and  both  remain  unpaid.  But,  whatever  may  r^..  o-i 
*have  been  the  origin  of  the  rule,  and  however  doubtful  its  L  ^ 
equity,  it  cannot  be  denied  that  such  a  rule  does  exist ;  though 
it  has  been  thought  by  at  least  one  learned  judge,  Sir  Alan 
Chambre,  (4  Bos.  &  Pull.  72,)  to  have  been  already  carried  far 
enough. 

The  only  question  is,  whether  the  transifus  was  ended  by  the 
delivery  of  the  goods  in  question,  on  board  the  Pleiades  at  Gib- 
raltar, or  continued  until  her  arrival  at  Philadelphia ;  and  to 
determine  this  question  in  favor  of  the  defendant,  two  proposi- 
tions must  be  established. 

1.  That  the  transitus  is  at  an  end  whenever  the  goods  are 
delivered  to  the  special  agent  of  the  consignee. 

2.  That  the  master  of  the  -consignee's  own  ship,  is  such  an 
agent. 

1.  The  continuance  of  the  right  of  stoppage  in  fransiiu,  is 
limited  to  the  period  during  which  the  goods  are  in  the  hands  of 
a  mere  middle  man,  the  agent  of  both  parties,  while  on  their 
way  to  the  vendee,  or  to  some  person  or  place  specially  ajipointed 
by  him.  The  same  person  may  be  either  a  middle  man,  or  the 
special  agent  of  the  vendee.  It  is  his  character  in  relation  to 
the  particular  transaction,  which  determines  the  vendor's  right 
to  reclaim  the  goods.  The  vendor  himself  may  be  such  special 
agent,  and  hold  the  property  for  the  use  of  the  vendee,  as  was 
the  case  in  Barrett  v.  Goddard,  3  INIasou,  107.  The  idea  ex- 
pressed by  liord  Mansfield,  in  which  he  at  first  seems  to  have 
been  supported  by  Lord  Kenyon,  that  the  corporal  touch  of  the 
vendee  was  necessary  to  put  an  end  to  the  transit,  has  never  been 
adhered  to.  It  is  regarded  as  a  figurative  expression,  the  use  of 
which  has  frequently  been  regretted.    Lawes  on  Charter  Parties, 

13 


13  SUPREME  COURT  [Philadelphia, 

[Bolin  and  others  v.  Hufihagle,  Assignee,  &c.] 

493.  There  are  many  cases  which  illustrate  the  position  con- 
tended for.  Delivery  to  a  packer,  as  a  middle  man,  it  has  been 
held,  does  not  terminate  the  transitu^.  Hunt  v.  Ward,  cited  in 
Ellis  V.  Hunt,  3  D.  &  E.  467.  But  it  is  terminated  by  delivery 
to  a  packer,  in  whose  hands  the  goods  are  subject  to  the  control 
of  the  vendee.  Leeds  v.  Wright,  3  Bos.  &  Pull.  320.  The 
same  principle  governed  the  case  of  Scott  v.  Pettit,  3  Bos.  <fe 
Pull.  469.  So,  if  goods  be  delivered  to  a  wharfinger,  who  is  a 
middle  man,  the  consignor  may  stop  them  before  they  reach  the 
consignee.  Mills  v.  Ball,  2  Bos.  &  Pull.  457.  But  if  a  man 
be  in  the  habit  of  using  the  warehouse  of  a  wharfinger,  as  his 
own,  and  make  that  the  depository  of  his  goods,  and  dispose  of 
them  there,  it  seems  that  the  trandtus  ceases  when  they  arrive 
at  such  warehouses.  Richardson  .u.  Goss,  3  Bos.  &  Pull.  119. 
The  same  distinction  will  be  found  in  Hurry  v.  Mangles,  1 
Campb.  452 ;  Harman  v.  Anderson,  2  Campb.  243  ;  and  Oppen- 
heim  v.  Russell,  3  Bos.  &  Pull.  42.  Tlie  slightest  circum- 
stances have  been  considered  sufficient  to  put  an  end  to  the  right. 
Such  as  marking  the  goods.  Ellis  v.  Hunt,  3  D.  &  E.  464 ;  or 
weighing  them.  Hammond  v.  Anderson,  4  Bos.  &  Pull.  69  ;  or 
r*-|4-|  taking  samples.  Wright  r.  Lawes,  4  Esp.  82.  *"If  any- 
L  J  thing  remains  to  be  done,  on  the  part  of  the  seller  as  be- 
tween him  and  the  buyer,"  says  Lord  Elleuborough  in  Hanson 
V.  Meyer,  6  East,  629,  "  before  the  commodity  purchased  is  to  be 
delivered,  a  complete  present  right  of  property  has  not  attached 
in  the  buyer ;  and  this  action,  (trover  for  the  goods  by  the 
assignees  of  the  vendee,)  which  is  accommodated  to,  and  depends 
upon  such  supposed  perfect  right  of  property,  is  not  maintain- 
able." The  converse  of  the  proposition  is,  of  course,  also  true. 
This  rule  has  been  the  criterion  of  the  subsequent  decisions  on 
this  subject.  The  right  to  stop  the  goods  does  not  continue 
until  they  reach  the  residence  of  the  consignee,  or  the  place  to 
which  he  destines  them.  It  ceases  when  they  have  reached  the 
destination  agreed  upon  between  him  and  the  vendor,  though 
they  have  not  reached  their  ultimate  destination.  Dixon  v. 
Baldwen,  5  East,  175.  It  is,  in  some  cases,  at  an  end,  even 
where  the  property  remains  in  the  hands  of  the  vendor  himself, 
as  in  the  case  already  cited,  of  Barrett  v.  Goddard,  3  Mason, 
107,  where  the  goods  were  sold  on  credit,  and  by  agreement 
with  the  vendor,  they  remained  in  his  stores  until  the  vendee  be- 
came insolvent ;  and  that  of  Elmore  v.  Stone,  1  Taunt.  458, 
where  the  purchaser  agreed  to  give  a  certain  price  for  a  pair  of 
horses,  upon  which  the  seller,  who  was  a  livery  stable  keeper, 
and  dealt  in  horses,  removed  them  from  his  sale  stable  to  another 
stable.  In  both  these  cases  it  was  determined,  that  the  absolute 
property  had  vested  in  the  buyer.  All  these  cases  establish  the 
14 


Dec.  29,  1828.]      OF  PENNSYLVANIA.  14 

[Bolin  and  others  v.  Huffhagle,  Assignee,  &c.] 

principle,  that  whenever  the  goods  come  into  the  hands  of  the 
particular  agent  of"  the  vendee,  and  there  is  no  longer  any  privity 
between  him  and  the  vendor,  the  right  to  reclaim  them  is  gone. 
2.  Was  the  delivery  on  board  the  consignee's  own  ship,  to  his 
own  master,  a  delivery  to  himself?  It  is  precisely  the  same  as 
a  delivery  at  the  vendee's  warehouse,  which,  it  has  been  seen, 
terminates  the  transitus.  There  was,  in  this  case,  no  privity  be- 
tween the  consignor  and  the  master,  nor  had  the  former  the 
slightest  control  over  the  latter.  The  master  was  ameual)le  to, 
and  subject  to  the  orders  of  the  consignee  alone.  He  was  his 
servant.  All  the  elementary  writers  concur  in  this.  Abbot  on 
Shipping,  361,  362;  Holt  on  Shipping,  210,  211;  Lawes  on 
Charter  Parties,  532,  534.  This  doctrine  has  been  carried  farther 
than  it  is  now  necessary  to  contend  for.  In  Fowler  v.  M'Tag- 
gart,  cited  in  1  East,  522,  it  was  decided,  that  delivery  on  board 
a  vessel,  chartered  by  the  consignee  for  three  years,  was  a 
delivery  to  the  consignee  himself.  This  principle  was  fully 
recognized  in  Inglis  v.  Usherwood,  1  East,  515 ;  but,  as  in  that 
case  the  delivery  was  on  board  such  a  ship  in  Russia,  by  the 
laws  of  which  country,  the  owner  of  the  goods  had  a  right,  on 
the  bankruptcy  of  the  vendee,  to  take  back  his  goods,  it  was 
determined,  that  the  assignees  of  the  vendee,  who  had  become 
bankrupt  before  the  arrival  of  the  ship  home,  were  not  entitled 
to  them.  In  these  cases,  the  principle  tliat  a  ship  chartered 
*for  a  term  of  years,  is  constructively  the  ship  of  the  r-^. ;.-. 
charterer,  was  fully  established ;  though  the  latter  case  '-  -^ 
was  taken  out  of  it  by  the  liussian  ordinance.  The  case  is 
much  stronger,  where,  as  in  the  present  instance,  the  vessel  is 
the  actual  property  of  the  consignee.  Lord  Kenyon,  in  Boeht- 
linck  V.  Schneider,  3  Esp.  58,  considered  delivery  on  board  a 
ship  chartered  merely  for  the  voyage,  sufficient  to  divest  the 
right  to  stop  the  goods.  But  that  case  has  been  overruled  by 
Boehtlinck  v.  Inglis,  3  East,  381,  and  the  distinction  is  now 
well  settled  between  a  vessel  chartered  for  a  term,  and  one 
chartered  for  the  voyage.  Mercardier  v.  Chesapeake  Ins.  Co.,  8 
Cranch,  39 ;  Phill.  on  Ins.  242.  In  Stubbs  v.  Lund,  7  Mass. 
R.  453,  cited  on  the  other  side.  Chief  Justice  Parsons,  who  was 
more  distinguished  as  a  common,  than  as  a  commercial  lawyer, 
departed  from  the  landmarks  previously  set ;  added  to  which, 
the  circumstances  of  the  case  showed  an  assent  to  the  stoppage. 
There  is  nothing  in  the  cases  previously  decided,  like  the  dis- 
tinction taken  by  that  learned  judge,  between  a  shipment  of 
goods,  to  be  delivered  to  the  consignee,  and  one  of  goods  to  be 
delivered  at  a  foreign  port.  There  is  neither  authority  nor 
principle  for  such  a  distinction.  Stubbs  v.  Lund  was  the  guide 
to  the  subsequent  decision  of  Ilsley  v.  Stubbs,  9  Mass.  R.  65,  by 

15 


16  SUPREME  COURT  {PMaddphia, 

[Bolin  and  others  v.  Huffiiagle,  Assignee,  &c.] 

Sewall,  J.,  who,  besides,  states  that  the  goods  were  under  the 
control  of  the  consignors  at  the  time  they  were  stopped.  If  in 
the  case  of  Coates  v.  Railton,  6  Barnw.  &  Cressw.  422,  it  was 
intended  to  say,  that  where  goods  come  into  the  hands  of  the 
vendee,  whose  intention  it  is  to  send  them  to  a  foreign  port,  the 
vendor  may  stop  them,  it  is  going  too  far.  But,  if  it  was  only 
meant,  that  the  right  continues  until  their  arrival  at  their  ulte- 
rior place  of  destination,  where  that  destination  has  been  agreed 
upon  between  the  vendor  and  vendee,  it  was  right.  The  case 
professes  to  be  in  accordance  with  previous  decisions,  which  if 
more  than  the  latter  position  was"  intended,  it  departs  from. 

Chauncey  in  reply. — The  question  now  under  consideration 
has  never  been  directly  decided,  except,  perhaps,  in  Massachu- 
setts. The  circumstances  of  the  case  are,  that  the  owners  of  a 
ship  in  Philadelphia,  addressing  themselves  to  their  corres- 
pondents in  a  foreign  port,  where  the  ship  is,  declare  their 
willingness  to  receive  goods  to  .a  certain  amount,  on  their  own 
account,  provided  a  freight  to  Philadelphia  can  be  procured, 
and  state  that  they  will  accept  a  draft  in  favour  of  one  of  the 
partners  of  the  foreign  house,  in  payment.  The  goods  are 
shipped,  but  before  their  arrival,  the  consignees  become  in,«;olvent, 
and  the  consignors  claim  the  right  to  have  their  goods  back 
again.  If  there  be  any  value  in  the  principle  of  stoppage  in 
transitu,  it  must  be  available  in  this  case,  which  is  that  of  taking 
the  goods  of  Messrs.  Bolin,  Leach,  and  Gatewood,  to  pay  the 
debts  of  Messrs.  Sperry  and  Stausbury.  The  doctrine  of  stop- 
page in  transitu,  is  reasonable,  because  it  is  founded  in  honesty. 
The  extension  of  commerce  required  its  introduction.  It  is 
derived,  not  from  the  common,  but  the  civil  law,  though  the 
latter  extends  it  to  all  cases  in  which  the  price  remains  unpaid.  It 
r*1fi1  ^^  *atvariance  with  some  principles  of  the  common  law,  and 
L  -I  therefore  is  supposed  to  have  been  derivwl  from  equity. 
But  whatever  may  have  been  its  origin,  it  is  now  fully  established 
as  a  legal  doctrine.  The  great  object  is  to  secure  the  interest  of  a 
vendor  who  has  sold  goods  on  the  faith  of  the  solvency  of  a 
distant  vendee,  who  becomes  insolvent  before  they  reach  him. 
Some  ambiguity  has  arises  from  confounding  the  doctrine  of  stop- 
page in  transitu,  with  that  of  lien.  They  are,  however,  distinct 
doctrines.  The  former  takes  place,  where  the  title  and  possession 
have  passed  from  the  vendor,  and  is  founded  on  the  right  to 
resume  the  goods  before  they  reach  the  vendee.  The  latter  can 
only  exist  while  the  property  remains  in  the  possession  of  the 
party  who  asserts  the  lien.  The  class  of  cases,  therefore,  which 
has  been  cited,  establishing  the  position,  that  where  everything 
has  been  done  between  the  vendor  and  vendee,  such  as  weighing, 
16 


Dec.  29, 1828.]      OF   PENNSYLVANIA.  16 

[Bolin  and  others  v.  Iluffiiagle,  Assignee,  &c.] 
marking,  &c.,  the  vendor  cannot  retain  the  goods  on  tlie  insol- 
vency of  the  vendee,  belongs  to  the  doctrine  of  liens,  and  is 
inapplicable  to  the  point  under  discussion.  Such  was  the  case 
in  3  Mason,  109.  Lord  Mansfield  has  said,  that  to  divest  the 
right  of  stoppage,  the  goods  must  come  to  the  corporal  touch  of 
the  consignee.  In  this  he  was  followed  by  Lord  Kenyon,  who, 
it  is  true,  afterwards  regretted  the  expression ;  but  it  has  been 
declared  again  and  again  by  different  judges,  that  the  right  is 
divested  only  by  actual  possession.  This  language,  however,  is 
perhaps  rather  too  strong,  as  there  are  cases  in  which  construc- 
tive possession  has  been  held  to  terminate  the  transit.  The 
right  of  stoppage  exists  in  all  cases  where  the  goods  are  delivered 
to  any  one  to  be  delivered  to  the  vendee,  and  while  they  are  in 
transit  to  him.  It  does  not.  cease  until  they  reach  him,  or  are 
subject  to  his  control.  If  they  are  m  transitu,  it  does  not 
matter  in  what  vehicle  of  conveyance,  or  in  whose  hands  as 
servant  or  agent  they  may  be.  The  term  middle  man  does  not 
signify  a  person  representing  both  interests.  Such  an  agent 
cannot  represent  the  vendor.  The  master  of  a  general  ship, 
wliich  is  undisputed  ground,  does  not  represent  the  consignor. 
There  is  no  privity  between  them.  Nor  does  a  packer,  a  wharf- 
inger, or  a  carrier  represent  both  parties.  Nothing  more  is 
meant  by  tlie  term  middle  man,  than  that  he  is  the  channel  of 
transportation,  in  whose  possession  the  goods  may  be  stopped. 
The  object  of  the  delivery  to  an  agent,  and  not  the  character  of 
tlie  agent,  is  the  criterion.  Where  the  goods  are  delivered  for 
transportation,  the  right  continues  though  the  agent  be  a  special 
one ;  but  where  they  are  delivered  to  special  agent  to  exercise 
dominion  over  and  to  dispose  of  them,  the  case  is  different. 
This  view  of  the  subject  reconciles  all  the  seemingly  contradic- 
tory cases.  There  is  no  case  in  the  books  of  a  delivery  on 
board  the  consignee's  own  ship,  but  the  principle  contended  for 
is  applicable  to  such  a  case.  It  is  admitted  in  the  opposite 
argument,  that  delivery  on  board  a  general  ship  or  one  chartered 
for  the  voyage,  does  not  prevent  the  consignor  from  resuming 
the  property ;  but  it  has  been  held  in  Fowler  v.  M'Taggart  that 
he  *cannot  do  so,  after  a  delivery  on  board  a  ship  char-  |>1^--j 
tered  for  three  years.  This  is  a  solitary  case  which  can-  •-  -■ 
not  countervail  the  principles  established  by  various  other  de- 
cisions. Besides,  there  were  peculiar  circumstances  in  that 
case.  The  goods  were  delivered  on  board  to  be  sent  abroad  to 
merchandize.  They  were  under  the  control  of  the  vendee,  and 
tlierefore  as  much  in  his  possession  as  if  they  had  been  de})os- 
ited  in  his  own  warehouse.  There  is  a  wide  difference  between 
that  case  and  the  one  under  consideration.  Messrs.  Sperry  and 
Stansbury  agreed  to  receive  on  their  own  account  the  wine  and 

VOL.  1,-2  1 7 


17  SUPREME  COURT  [Philadelphia, 

[Bolin  and  others  v.  Hufihagle,  Assignee,  &c.] 

raisins,  provided  the  ship  should  proceed  directly  to  Philadel- 
phia. The  object  of  the  delivery  on  board  was  transportation 
to  Philadelphia.  The  master  who  received  the  goods  was  an 
agent  for  that  purpose  merely,  and  had  no  control  over  them 
whatever.  This  principle  served  as  the  guide  of  Chief  Justice 
Parsons  in  Stubbs  v.  Lund,  the  authority  of  which  has  been 
upheld  by  subsequent  decisions  of  the  same  court.  And  this  is 
not  the  first  time  that  a  question  of  commercial  law,  after  having 
been  beaten  about  for  years  in  Westminster  Hall,  has  in  this 
country  found  its  true  principle,  which  has  afterwards  been 
recognized  by  English  courts. 

The  opinion  of  the  court  was  delivered  by 

Rogers,  J. — The  facts  on  which  the  question  arises  are  par- 
ticularly set  forth  in  the  case  stated.  It  is  agreed,  that  unless 
the  plaintiffs,  under  the  circumstances,  had  a  right  of  stoppage 
in  transitu,  the  assignee  is  entitled  to  the  money.  Without  en- 
tering into  a  general  discussion  of  the  law  of  stoppage  in  tran- 
situ, it  may  be  sufficient  to  observe,  as  a  preliminary  remark, 
that  as  between  the  original  consignor  and  consignee,  it  is  now 
clear,  that  the  consignee  has  a  right  to  seize  the  goods  in  their 
transit  or  passage  from  the  consignor  to  the  consignee,  if  the 
consignee  before  they  are  delivered,  becomes  insolvent. 

This  right  is  now  well  established  by  law ;  although  the  ex- 
tent of  the  doctrine  has  been  a  matter  of  frequent  discussion, 
and  some  difficulty. 

The  general  right  being  admitted,  the  inquiry  will  be, 
whether  this  case  comes  within  the  principles  of  the  judicial 
adjudications.  To  whatever  principles  the  right  of  stoppage  in 
transitu  be  referred,  it  is  plain,  that  if  the  goods  be  once  actually 
delivered  into  the  possession  of  the  consignee  or  purchaser,  the 
property  is  thereby  absolutely  vested  in  him.  It  is  the  same 
if  the  delivery  be  to  his  servant  or  correspondent  authorized  by 
him  to  receive  the  goods ;  for  the  possession  of  either  of  them 
is,  in  law,  a  delivery  to  the  consignee  himself.  The  question 
always  is,  whether  the  party  to  whom  the  goods  actually  came 
be  an  agent,  so  far  representing  his  principal,  as  to  make  the 
delivery  to  him  a  full,  effectual,  and  final  delivery  to  the  princi- 
pal, as  contra-distinguished  from  a  delivery  to  a  person  virtually 
r*io-|  acting  as  a  carrier,  or  mean  of  *conveyance  to,  or  on 
•-  J  account  of  the  principal,  in  a  mere  course  of  transit  to- 
wards him.  Dixon  v.  Baldwen,  5  East,  184 ;  Lawes  on  Charter 
Parties,  ch.  3,  492 ;  Brown's  Law  of  Sales,  451 ;  4  Esp.  243 ; 
Leeds  v.  Wright. 

If  these  principles  be  fairly  deducible  from  the  cases,  and 
that  they  are  is  abundantly  plain,  from  the  instances  I  have 
18 


Dee.  29,  1828.]      OF   PENNSYLVANIA.  18 

[Bolin  and  others  v.  Huffnagle,  Assignee,  &c.] 

cited,  then  this,  independently  of  some  cases  which  the  industry 
of  counsel  has  pressed  into  their  service,  may  be  considered  as 
a  question  of  easy  solution.  The  relation  of  the  master  is  that 
of  a  special  agent  to  his  employer.  He  so  far  represents  his 
principal,  as  to  make  a  delivery  to  him,  (in  the  absence  of  a 
special  agreement  to  the  contrary,)  a  full,  effectual,  and  final 
delivery  to  the  principal  himself.  The  master  of  tlie  ship  can- 
not, with  any  propriety,  be  considered  as  a  common  carrier,  or 
mere  middle  man,  between  the  consignor  and  consignee.  He  is 
under  the  absolute  control  of  Sperry  and  Stansbury,  liable  to 
be  dismissed  at  their  will  and  pleasure,  in  the  same  manner  as 
any  other  servant  may  be  discharged  from  the  service  of  his 
employer.  After  the  delivery  of  the  goods  at  Malaga  to  the 
captain,  Bolin  &  Co.  ceased  to  have  any  control  over  them. 
Every  connection  between  the  vendors  and  the  agent  w^as  at  an 
end,  and  the  agent  became  alone  answerable  to  his  employers. 
Nor  had  the  agent  any  demands  against  the  vendors.  Not  so 
in  the  case  of  a  common  carrier  or  middle  man,  who,  for  certain 
purposes,  is  considered  as  the  agent  of  both  parties,  and  against 
whom,  in  certain  cases,  either  the  vendor  or  vendee  would  have 
a  right  of  action.  So,  also,  in  the  event  of  the  insolvency  of 
the  vendee,  or  refusal  to  take  the  goods,  a  common  carrier  would 
have  an  action  against  the  vendor  for  his  freight.  So  much  is 
the  master  considered  as  the  special  and  exclusive  agent  of  his 
employer,  that  in  no  case  would  he  have  been  justified  in  a  re- 
delivery of  the  goods  to  the  vendors.  This  being  the  law,  it  is 
a  difficult  matter  to  distinguish  such  a  delivery  from  one  made 
in  a  man's  warehouse,  particularly  if  the  warehouse  be  not  at 
the  place  of  his  abode.  Indeed  I  do  not  understand  this  to  be 
denied,  but  the  counsel  for  the  plaintiffs  seek  to  place  this  case 
on  different  grounds.  It  has  been  strenuously  contended,  that 
the  right  of  stoppage  in  transitu  exists  in  all  cases  where  the 
goods  hav^e  been  delivered  to  any  one  for  transportation,  and 
continues  until  they  reach  the  vendee,  and  are  subject  to  his 
dominion,  and  it  matters  not  in  what  way  they  are  transmitted, 
or  what  agents  are  employed. 

Brown,  in  his  treatise  on  the  Law  of  Sales,  506,  deduces  this 
principle  from  an  elaborate  review  of  all  the  authorities.  "  It 
seems  clear,"  says  the  learned  author,  "that  the  reason  why 
goods  are  liable  to  be  stopped  in  the  hands  of  a  carrier  or 
packer,  is  not  because  a  delivery  to  such  person  on  account  of 
thc^^endee  is  only  a  constructive  delivery,  but  because  it  is  a 
delivery  for  the  purpose  of  transport,  or  in  the  course  of  the 
conveyance  of  the  goods  to  the  vendee." 

*  The  general  rule,  therefore,  seems  to  be,  not  that  the  r*i  qi 
goods  may  be  stopped  after  a  delivery  merely  construe-   •-       -■ 

19 


19  SUPREME  COURT  [Philadelphia, 

[Bolm  and  others  v.  Iluflhagle,  Assignee,  «Stc.] 

tive,  and  that  nothing  sliort  of  an  actual  delivery  vests  the 
property  indefeasibly  in  the  vendee,  but  that  the  state  of  trarin 
situs  is  put  an  end  to  by  delivery  either  actual  or  constructive, 
and  that  it  is  only  when  the  constructive  delivery  is  for  the 
purpose  of  transport,  or  is  connected  with  the  transmission  of 
the  goods,  that  an  exception  is  admitted  to  this  rule,  and  that 
they  remain  liable  to  stoppage  after  such  delivery.  In  all  other 
cases,  constructive  delivery  is  equally  effectual  as  actual  delivery 
to  put  an  end  to  the  state  of  transitua.  Instead  of  its  being  a 
general  rule,  therefore,  that  goods  are  liable  to  stoppage  after  a 
delivery  merely  constructive,  the  general  rule  seems  to  be  exactly 
the  reverse,  and  it  is  merely  an  exception  to  the  general  rule, 
that  goods  are  liable  to  stoppage  after  a  constructive  delivery  to 
a  carrier. 

If  this  be  the  true  rule,  it  is  incumbent  upon  the  plaintiffs  to 
bring  themselves  within  the  benefit  of  the  exception.  The  case 
finds,  that  Sperry  and  Stansbury,  to  whom  the  goods  were  con- 
signed, were  the  owners  of  the  ship  of  which  Captain  King,  to 
whom  the  goods  were  delivered,  was  master.  I  think  nothing 
of  the  phraseology  of  the  bill  of  lading,  to  be  delivered  to  Sperry 
and  Stansbury.  It  is  a  mere  form  of  expression,  and  was  not 
intended  to  vary  the  ordinary  mode  of  delivery  to  a  known  agent, 
nor  was  it  meant  as  a  special  reservation  of  a  right  of  stoppage 
in  transitu,  until,  in  the  language  of  Lord  Mansfield,  they  shall 
come  to  the  corporal  touch  of  the  vendees.  Nor  do  I  think 
there  is  anything  in  the  letter  of  instructions,  which  differs  this 
from  the  common  course  of  dealing  between  vendor  and  vendee. 
In  the  bill  of  lading,  the  consignors  recognize  the  relation  in 
which  Captain  King  stood  to  his  employers,  who  were  the  owners 
of  the  ship,  which  is  altogether  inconsistent  with  the  character 
of  a  common  carrier,  used  as  a  mere  means  of  transportation 
between  the  vendor  and  vendee.  I  look  upon  this  not  as  a  case 
of  constructive,  but  of  actual  delivery,  and  in  this  opinion  I  am 
supported  by  Mr.  Lawes  in  his  work  on  Charter  Parties  and 
Stoppage  in  Transitu,  page  492,  where  an  actual  delivery  is 
spoken  of  in  opposition  to  a  constructive  or  supposed  delivery 
to  some  third  person  (not  the  immediate  agent  of  the  vendee  or 
consignee)  for  the  purpose  of  forwarding  the  goods  to  him  or  his 
agent.  Mr.  Bell  also  uses  the  terms  actual  delivery  in  the  same 
sense.  "Actual  delivery,"  says  the  commentator.  No.  127,  "is 
held,  commonly,  to  imply  two  distinct  acts :  the  ceding  the  cor- 
poral possession  by  the  seller  or  his  servants,  and  the  actual 
apprehension  of  corporal  possession  by  the  buyer  or  his  servants, 
or  by  some  person  authorized  by  him  to  receive  the  goods,  as 
his  representative  for  the  purpose  of  disposal,  or  of  custody,  not 
of  mere  conveyance."  To  the  same  effect  is  Brown  in  his  treatise 
20 


Dec.  29,  1828.]      OF  PENNSYLVANIA.  19 

[Bolin  and  others  v.  Huffnagle,  Assignee,^&c.] 

on  Sales,  451.  Actual  delivery,  then,  I  understand  to  consist  in 
the  giving  rea^^ossession  of  the  thing  sold  to  the  vendee  or  his 
servants,  or  special  *agents,  who  are  identified  with  him  r^nA-i 
in  law,  and  represent  him.  Constructive  delivery  is  a  l  J 
general  term,  comprehending  all  those  acts,  which  although  not 
truly  conferring  a  real  possession  of  the  thing  sold  on  the 
vendee,  have  been  held  constriictione  juris,  equiv'^alent  to  acts  of 
real  delivery.  In  this  sense  constructive  delivery  includes  sym- 
bolical delivery,  and'  all  those  traditiones  JictcB,  which  have  been 
admitted  into  the  law  as  sufficient  to  vest  the  absolute  property 
in  the  vendee,  and  bar  the  rights  of  lien  and  stoppage  in  tran- 
situ; such  as  marking  and  setting  apart  the  goods  as  belonging 
to  the  vendee^  charging  him  with  warehouse  rent,  &c. 

Whilst,  therefore,  I  accede  to  the  principle,  not,  however,  to 
the  extent  claimed  by  the  plaintiffs,  I  altogether  deny  its  appli- 
cation to  the  circumstances  of  this  case.  In  all  cases  of  actual 
delivery  the  transitus  ceases ;  so,  also,  in  some  where  the  delivery 
is  merely  constructive.  The  doctrine  of  Lord  Mansfield,  that 
the  transitus  continues  until  the  goods  come  to  the  corporal 
touch  of  the  vendee,  and  of  Buller,  that  they  must  come  into 
his  actual  possession,  has  been  long  since  exploded.  The  extent 
of  the  doctrine  in  relation  to  constructive  delivery  it  is  unneces- 
sary to  trace.  It  will  be  sufficient  for  us,  and  more  safe,  to 
confine  ourselves  to  the  question  at  issue  between  the  parties. 
I  shall  now  proceed  to  inquire  how  far  the  authorities  are  in 
accordance  with  these  principles.  We  do  not  think  it  necessary, 
nor  indeed  proper,  to  examine  all  the  decisions  from  Suee  v. 
Prescott,  which  is  the  leading  case,  but  shall  content  ourselves 
with  noticing  such  as  have  an  immediate  bearing  on  the  ques- 
tion ;  nor  indeed,  should  we  think  any  further  investigation 
required,  were  not  this,  in  some  measure,  untrodden  ground  in 
our  courts.  Those  who  are  desirous  of  seeing  a  complete  exami- 
nation of  the  law  of  stoppage  in  transitu,  Avill  be  amply  gratified 
by  a  resort  to  the  elementary  treatises  of  Abbott  on  Shipping, 
Lawes  on  Charter  Parties,  and  particularly  to  Brown's  learned 
treatise  on  the  Law  of  Sales. 

The  first  case,  and  certainly  the  most  important,  which  imme- 
diately bears  on  the  question,  is  Fowler  and  M'Taggart,  the 
proper  name  of  which  is  said  to  be  Fowler  or  Kymer,  et  al,  and 
was  tried  before  Mr.  Justice  Grose,  at  Bristol.  The  bankrupts, 
Hunter  &  Co.,  were  in  possession  of  a  ship  let  to  them  for  a  term 
of  three  years,  at  fifty-two  pounds  and  ten  shillings  per  month, 
they  finding  stock  and  provisions  for  the  ship,  and  paying  the 
master ;  during  which  time  they  were  to  have  the  entire  dispo- 
sition of  the  ship,  and  the  complete  control  of  her.  The  ship, 
(it  appears  in  the  statement  of  the  case,  which  is  given,  as  is 

21 


20  SUPREME  COURT  [Philadelphia, 

[Bolin  and  others  v.  Hufihagle,  Assignee,  <&c.] 

said,  more  particularly  in  3  East,  396,  Boeiitliuek  and  Inglis,) 
had  been  on  a  voyage  to  Alexandria,  and  had  th^  goods  put  on 
board  her,  to  carry  them  on  another  voyage  to  the  same  })lace, 
not  for  the  purpose  of  conveying  them  from  the  plaintiffs  to  the 
bankrupts,  but  that  they  might  be  sent  by  the  bankrupts,  upon 
a  mercantile  adventure,  for  which  they  had  bought  them.  The 
r*9i  1  principle  of  Fowler  and  Kymer,  I  understand  *to  l>e  this, 
L  ■»  that  inasmuch  as  the  bankrupts  had  cliarteretl  the  vessel 
for  a  term  of  years,  and  not  merely  for  the  voyage,  found  the 
stock  and  provisions,  employed  and  paid  the  master,  had  the 
entire  disposition  of  the  ship,  and  complete  control  over  her,  they 
were  pro  tempwe  the  owners,  and  that  the  master,  under  these 
circumstances,  became  the  special  and  exclusive  agent  of  the 
bankrupts,  and  that  therefore  a  delivery  to  him  was  a  delivery 
to  bankrupts  themselves ;  that  the  transitus  was  at  an  end,  or 
more  properly  speaking  never  commenced,  and  that  the  delivery 
between  the  vendor  and  vendee  was  absolute  and  iinal.  The 
special  facts,  (which  are  for  the  first  time  stated  by  Lawrence,  J., 
in  Boehtlinck  v.  Inglis,  3  East,  396,  and  which  are  somewhat 
differently  stated  in  1  East,  522,  and  which  appear  to  have  been 
read  from  the  brief  in  the  cause,  7  T.  R.  442,)  that  the  goods 
were  bought,  not  for  the  purpose  of  conveying  them  from  the 
plaintiffs  to  the  bankrupts,  but  that  they  might  be  sent  by  the 
bankrupts  upon  a  mercantile  adventure,  was  not  the  ground  of 
the  decision,  as  appears  from  the  opinion  of  Lawrence,  J.,  in  the 
same  case.  He  says,  speaking  of  Fowler  and  Kymer,  there  the 
deliveiy  was  complete ;  and  the  facts  of  that  case  differ  widely 
from  this,  (meaning  Boehtlinck  v.  Inglis,)  where  Crane  had  no 
control  over  the  ship,  and  had  merely  contracted  with  the  master, 
to  employ  his  ship  in  fetching  goods  for  him. 

In  Inglis  and  others  v.  Usherwood,  1  East,  523,  the  prin- 
ciple which  I  have  extracted  from  Fowler  and  Kymer,  is  recog- 
nized. The  decision  of  this  case,  says  Lord  Kenyon,  will  not 
trench  upon  the  general  rule  of  law,  respecting  the  rights  of 
stopping  goods  in  transitu,  but  giving  the  ])laintiffs  the  full 
benefit  of  the  argument,  that  the  delivery  of  the  goods  on  board 
a  chartered  vessel  was  a  delivery  to  the  bankrupts,  still  the  cir- 
cumstances of  the  Russian  ordinance  set  forth  in  this  case,  varies 
it  very  importantly,  and  takes  it  out  of  the  general  rule.  Grose, 
J.,  who,  let  it  be  remembered,  was  the  judge  who  ruled  the  case 
of  Fowler  and  Kymer,  and  who  ought  to  have  understood  the 
grounds  of  his  decision,  at  least  as  well  as  Justice  Lawrence, 
says  :  "  I  agree  to  the  general  rule,  that  the  delivery  of  goods 
by  the  vendors  on  board  a  ship  chartered  by  the  vendee,  is  a 
delivery  to  the  vendee  himself."  Lawrence,  J.,  says,  "  If  this 
transaction  had  happened  in  a  part  of  this  kingdom,  the  delivery 
22 


i)t'c.29,1828.]       OF   PENNSYLVANIA.  21 

[Bolin  and  others  v.  Hufihagle,  Assignee,  &c.] 

of  the  goods  on  board  a  ship  chartered  by  the  bankrupts,  would 
in  effect,  have  been  a  delivery  to  him."  I  do  not  understand  the 
learned  judge,  as  meaning  to  convey  the  idea,  that  a  delivery  in 
a  foreign  port  would  not  have  the  same  effect ;  for  without  doubt 
the  captain  would  have  been  as  much  the  special  and  exclusive 
agent  of  his  employer,  in  one  case  as  the  other.  It  is  the  asser- 
tion of  a  general  principle  made  in  reference  to  the  case  of 
Fowler  and  Kymer,  which  had  just  before  been  more  intelligibly 
expressed,  and  with  a  better  knowledge  of  the  grounds  of  the 
decision  by  Justice  Grose,  who  ruled  the  cause. 

*So  also,  Le  Blanc,  J.,  says,  "  I  put  the  case  of  Inglis  r-rtcof)-] 
and  Usherwood  on  the  Russian  ordinance.  The  laws  of  L  -• 
Russia  make  all  the  difference  between  this  and  the  other  cases 
referred  to." 

It  will  be  recollected  that  the  whole  court  were  speaking  in 
reference  to  Fowler  and  Kymer,  as  it  then  appeared,  and  not 
with  the  view  to  the  subsequent  discovery  of  Lawrence,  J. 

It  was  once  supposed  to  be  a  general  rule,  that  the  delivery 
of  goods  by  the  vendor  on  board  a  ship  chartered  by  the  vendee, 
was  a  delivery  to  the  vendee  himself,  so  as  to  preclude  the  ven- 
dor's right  of  stoppage  in  transitu.  And  this  opinion  was  enter- 
tained on  the  authority  of  the  case  of  Fowler  and  Kymer.  This 
misrepresentation  has,  I  am  inclined  to  believe,  given  rise  to  all 
the  difficulty  which  has  arisen  in  regard  to  this  case.  It  is  not 
the  delivery  on  board  of  a  chartered  ship,  which  precludes  the 
vendor's  right  of  stoppage  in  transitu,  but  it  is  tlie  delivery  to 
the  master,  when  he  can  be  considered  in  no  other  light  tlian  as 
the  exclusive  agent  of  the  vendee,  that  it  has  this  effect.  Where, 
for  instance,  there  was  a  charter  party  of  affreightment,  for  the 
voyage,  and  where  the  master  was  not  under  the  control  of  the 
vendee,  he  would  be  taken  as  a  middle  man,  a  mere  means  of 
conveyance  between  the  vendor  and  vendee ;  and,  in  such  a  case, 
the  transitus  would  not  end  until  the  delivery  to  the  vendee 
himself. 

I  am  aware  that  Chief  Justice  Parsons  put  the  case  u|x>n  a 
different  principle,  but,  for  the  reasons  I  have  stated,  I  cannot 
concur  with  him  in  the  view  he  has  taken.  He  seems  to  put  the 
right  of  stoppage  in  transitu  on  the  destination  of  the  goods  or 
final  termination  of  the  voyage,  a  distinction  which,  with  due 
deference,  will  be  found  unsatisfactory  in  its  application,  and  pro- 
ductive of  litigation.  Once  establish  the  doctrine  that  the  right 
depends  on  such  subtle  distinctions,  and  we  shall  be  as  much 
plagued  with  cases  to  settle  what  is  meant  by  the  destination  of 
the  goods,  and  final  termination  of  the  voyage,  as  we  have  been 
to  discover  the  kind  of  delivery  which  terminated  the  transitus. 
It  is  best  to  lay  down  a  plain  intelligible  rule,  easy  in  its  appli- 

23 


22  SUPREME  COURT  [Philadelphia, 

[Bolin  and  others  v.  Huffnagle,  Assignee,  &c.] 

cation,  and  to  leave  the  modification  of  the  rule  to  the  contract 
of  the  parties.  The  distinction  for  which  Chief  Justice  Parsons 
contends,  does  not  seem  to  have  been  cordially  received  by  the 
courts  of  Massachusetts,  nor  is  it  supported  by  the  current  of 
cases.  Why  the  final  destination  of  the  goods  should  make  the 
ditferenoe  is  not  very  intelligible,  and  has  not  been  explained.  In 
this  case,  according  to  the  authority  of  Stubbs  v.  Lund,  7  Mass. 
Rep.  453,  if  the  goods  had  been  shipped  for  New  Orleans,  the 
transitus  M^ould  have  been  at  an  end,  but  inasmuch  as  they  were 
conveyed  to  Philadelphia,  the  transitus  continues.  The  pro- 
priety of  the  rule  is  certainly  not  very  obvious,  nor  should  mer- 
cantile cases  depend  on  such  subtle  grounds. 

That  the  ultimate  destination  of  the  goods  does  not  aifect  the 
right  of  stoppage  in  transitu,  is  seen  from  Dixon  and  Baldwen, 
5  East,  188.  The  question  always  is,  not  whether  they  had  ar- 
p^no-i  rived  *at  their  ultimate  destination,  but  whether  the  tixm- 
L  J  sitiis  was  at  an  end  between  the  parties.  In  Dixon  and 
Baldwcn,  the  goods  had  not  arrived  at  the  place  of  their  ultimate 
destination,  but  inasmuch  as  they  had  between  the  vendor  and 
vendee,  the  court  decided  that  the  vendor  had  not  the  right  of 
stoppage  in  tr-ansitu. 

In  Richardson  v.  Gross,  3  Bos.  &  Pull.  127,  a  delivery  to  a 
warehouseman  to  whom  the  vendor  pays  warehouse  rent,  will 
take  away  the  right  to  stop  in  transitu,  although  the  goods  have 
not  reached  their  ultimate  destination.  Nor  is  it  necessary,  in 
order  to  prevent  the  exercise  of  this  right,  that  the  goods  should 
have  reached  the  consignee's  place  of  abode,  though  they  should 
even  have  been  intended  to  be  ultimately  delivered  there.  And 
this  position  is  proved  by  several  cases,  and  particularly  by 
Wright  V.  Lawes,  4  Esp.  82.  A  cargo  of  wines  was  consigned 
to  the  plaintiff,  who  lived  at  Norwich,  and  the  usual  course  was 
to  put  goods  intended  for  him  into  lighters,  at  Yarmouth,  and 
forward  them  to  Norwich;  but  his  agent  received  the  wines  and 
not  having  sufficiently  large  cellars  to  hold  them,  dejiosited  them 
in  the  cellars  of  the  defendant  at  Yarmouth  ;  and  the  plaintiff 
having  been  there  and  tasted  the  wines,  that  was  held  a  complete 
delivery  ;  as  the  carrier  ceased  to  have  any  further  care  of  them, 
having  delivered  them  to  the  plaintiff's  agent,  according  to  the 
bill  of  lading. 

In  opposition  to  these  cases,  Coates  v.  Railton,  6  Barnw.  & 
Cressw.,  has  been  cited  and  relied  on.  Lord  Tenterden,  before 
whom  that  cause  was  tried  at  Nisi  Prius,  certainly  put  it  on  the 
general  ground,  that  as  Lisbon  was  the  ultimate  destination  of 
the  goods,  they  continued  to  be  in  transitu  when  they  were  in  the 
warehouse  of  the  defendants ;  and  that  the  plaintiffs,  therefore, 
had  a  right  to  stop  them.  On  the  motion  for  a  new  trial.  Lord 
24 


Dec.  29,  1828.]      OF  PENNSYLVANIA.  23 

[Bolin  and  others  v.  HufFuagle,  Assignee,  &c.] 

Tenterden  reasserted  the  general  principle,  but  further  said,  that 
the  fact  of  their  having  been  the  general  agents  of  the  purchaser, 
as  well  as  warehousemen,  did  not  make  any  difference.  He  also 
seems  to  have  put  the  case  on  the  special  agreement  and  under- 
standing of  the  parties,  that  there  should  be  no  absolute  delivery, 
until  tlie  goods  reached  their  final  destination.  If  these  should 
be  the  grounds  on  which  the  cause  should  be  deemed  to  stand, 
it  is  unnecessary  for  me  to  quarrel  with  that  case.  It  is  nothing 
more  than  the  assertion  of  a  principle,  which  I  have  never  disputed ; 
that  where  there  is  a  middle  man  between  the  vendor  and  vendee, 
the  traiisitus  does  not  end  until  the  goods  reach  their  final  des- 
tination. Nor  has  it  been  disputed  that  a  special  agreement 
may  control  the  general  rule  of  stoppage  in  transitu  between 
the  parties.  Although  I  do  not  deny  the  principle  upon  which 
I  understand  the  cause  to  have  been  ruled,  yet  I  very  much 
doubt  the  application  of  the  principles  to  the  facts  of  the  cause. 
Independently  of  the  great  names  by  which  it  is  supported,  I 
should  have  supposed  that  the  warehouseman  was  not  the  general, 
but  that  he  was  the  the  special  and  exclusive  agent  of  the  vendee ;  in 
which  case  the  delivery  to  him  would  have  *beenan  actual,  r.^9  i-i 
absolute,  special  delivery,  which  clearly  would  have  ended  L  -^  J 
the  right  of  stoppage  in  transitu.  This  view  of  the  case  does 
not  appear  to  have  occurred  to  the  court,  nor  was  it  suggested 
by  the  counsel,  and  is,  therefore,  not  thought  to  interfere  with 
the  principles  which  we  have  deduced  from  the  cases. 

On  principle,  therefore,  and  authority,  a  majority  of  tlie  court 
are  of  the  opinion,  that  the  traiisitus  was  at  an  end  ;  or  perhaps, 
more  properly  speaking,  did  not  commence,  upon  the  delivery 
of  the  goods  to  Captain  King,  who  was  the  special  and  exclusive 
agent  of  the  vendees. 

Huston",  J. — The  plaintiffs  were  merchants  at  INIalaga.  One 
of  the  firm,  Gatewood,  was  in  this  country.  On  the  lotli  of 
July,  1822,  the  following  letter  was  addressed  to  them  :  "  Your 
Mr.  Gatewood  we  have  had  the  pleasure  to  See,  and  received  his 
assurance  of  your  exertions  to  procure  a  freight  for  our  brig, 
should  she  proceed  to  Malaga. 

"  We  should  prefer  a  freight  to  any  port  in  the  United  States, 
not  farther  east  than  New  York  or  south  than  Norfolk  ;  but,  if 
a  good  freight  offers  for  New  Orleans,  we  have  no  objections. 
If  direct  to  Philadelpliia,  we  have  no  objections,  as  we  informed 
your  partner,  ]\Ir.  Gatewood,  to  receive  on  our  account  to  the 
extent  of  about  three  thousand  dollars  in  first  quality  dry  Malaga 
wine,  cask  raisins  and  bloom  raisins,  an  equal  proportion  of  each,  for 
which  we  will  accept  your  draft  in  his  favour,  at  four  months' sight. 
(Signed)  "Sperry  and  Stansbuuy." 

25 


24  SUPREME  COURT  [Philadelphia, 

[Bolin  and  others  v.  Hufibagle,  Assignee,  &c^ 

On  the  23d  of  September,  1822,  the  plaintiff  shipped  tl)e  wine 
and  raisins  as  per  order,  to  be  delivered  at  the  port  of  Phila- 
delphia, to  Messrs.  Sperry  and  Stansbury,  or  to  their  assigns,  they 
paying  freight  for  the  said  goods  nothing,  being  the  owners  of 
the  said  vessel.  The  brig  in  which  the  goods  were  shipped 
belonged  to  Sperry  and  Stansbury,  and  was  commanded  by  Charles 
King,  master,  in  their  employment. 

On  the  31st  of  October,  1822,  before  the  arrival  of  the  vessel 
in  the  port  of  Philadelphia,  and  before  any  intelligence  of  the 
said  shipment,  Sperry  and  Stansbury  became  insolvent,  and  made 
a  general  assignment  for  the  benefit  of  their  creditors.  On  the 
28th  of  November,  the  vessel  arrived  in  the  Delaware,  and  was 
detained  at  Newcastle  by  a  replevin  taken  out  by  the  plaintiffs 
(through  their  partner  Gatewood,)  and  notice  given  to  the  master 
not  to  deliver  the  goods.  The  cargo  was  sold  under  an  agree- 
ment of  both  parties,  and  the  net  proceeds  deposited  in  bank. 
This  action  was  instituted  to  decide  the  right  to  that  money. 

The  right  to  stop  goods  bought  on  credit,  while  on  their  pas- 
sage from  the  seller  to  the  buyer,  where  the  latter  becomes  in- 
solvent, has  been  long  settled.  I  shall  not  go  back  to  the  origin 
of  this  doctrine  nor  pretend  to  go  through  all  the  cases,  nor 
r*oKi  decide  whether  *it  rests  on  the  principle,  that  a  seller 
'-  -•  who  gives  goods  on  credit  always  does  so  under  the  im- 
pression that  the  buyer  is  not  absolutely  insolvent,  or  that  when 
the  buyer  is  totally  insolvent,  and  cannot  perform  his  part  of 
the  contract,  it  is  equivalent  to  his  saying  he  will  not  perform 
it,  and  so  the  contract,  like  all  others,  in  such  circumstances,  is 
rescinded ;  or  on  the  plain  and  obvious  injustice  of  taking  one 
man's  goods  to  pay  the  debts  of  another ;  or  whether  all  these, 
and  other  principles,  entered  into  the  view  of  the  sages  who 
settled  the  law.  The  principle  is  settled,  but  what  cases  come 
within  it,  has  not  at  all  times  been  agreed.  After  the  goods  are 
in  the  actual  possession  of  the  buyer,  and  mingled  with  his  other 
property,  the  right  is  agreed  to  be  gone ;  but  when  this  posses- 
sion, which  puts  an  end  to  the  right,  exists,  and  when  the  tran- 
situs  ends,  is  the  question,  and  the  decisions,  certainly,  are  not 
all  consistent.  Lord  Mansfield  and  Lord  Kenyon  each  one  said, 
the  goods  must  come  to  the  corporal  touch  of  the  buyer.  Cer- 
tainly this  expression  was  not  used  literally,  for  they  may  be 
brought  to  the  warehouse  of  the  buyer,  unpacked  and  sold,  and 
the  buyer  never  have' laid  his  hand  on  them.  A  distinction  was 
taken  between  actual  and  constructive  possession,  and  this  left 
the  matter  as  uncertain  as  before ;  for  what  would  be  considered 
actual  and  what  constructive  possession,  was  by  no  means  agreed 
on.  At  one  time  it  was  said,  3  Esp.  N.  P.  Rep.  59,  that  if 
goods  are  put  on  board  of  a  ship  chartered  by  the  buyer,  they 
26 


Dec.  29, 1828.J       OF  PENNSYLVANIA.  25 

[Bolin  and  others  v.  HuflSiagle,  Aitsignee,  &c.] 

are  in  his  actual  possession,  and  cannot  be  stopped.  The  cause, 
however,  went  off  on  another  point.  If  another  cause  on  the 
same  cargo,  1  East,  518,  there  are  to  be  found  dlda  to  the  same 
effect ;  but  here  again  the  cause  went  off  on  another  point.     In 

3  East,  381,  another  case  on  the  same  cargo,  the  very  point 
arose,  and  all  the  cases,  particularly  Fowler  v.  Kymer,  were 
reviewed,  and  it  was  expressly  decided  that  the  delivery  to  a 
ship  expressly  chartered  for  the  purpose  and  sent  to  the  seller, 
and  in  which  they  were  loaded  by  him,  did  not  divest  his  right 
of  stoppage;  and  the  judge  who  had  decided  Fowler  and  Kymer, 
concurred  in  the  decision.  It  was  next  attempted  to  obtain  a 
decision,  that  if  goods  were  delivered  to  a  general  agent,  the 
right  of  stoppage  was  gone.     I  shall  here  notice  the  case  in 

4  Esp.  N.  P.  Kep.  82,  Wright  v.  Lawes.     The  marginal  note  is 
not  warranted  by  the  case,  which  is  this :  Shevill,  by  an  agent, 
bought  the  wines  of  Bamford,  Bruin  &  Co.  iii  London,  and 
they  were  to  be  delivered  at  Yarmouth.     Before  th«r  arrival 
at  Yarmouth,  Shevill  sold  them  to  Wright,  and  on  their  arrival 
they  were  put  into  a  warehouse,  until  they  could  be  forwarded 
in  lighters  to  Wright  at  Norwich.     AVright  had  paid  part  of 
the  money,  and  it  was  proved  his  purchase  was  fair.     Shevill 
and  his  agent,  being  swindlers,  and  unable  to  pay,  Bamford, 
Bruin  &  Co.  stopped  the  wines  in  the  warehouse  at  Yarmouth, 
and  Wright  recovered  them ;  but  here  the  delivery  at  the  place 
named  by  Shevill,  to  the  seller  was  complete.     Shevill  had  not 
only  received  the  wine,  but  sold  it.     The  passage  to  Norwich 
was  a  new  one,  in  consequence  of  *the  second  sale  of  r^op-i 
the  wine.     The  case  of  Wright  v.  Leeds,  3  Bos.  &  Pull.    L       J 
320,  is  cited  to  prove,  that  a  delivery  to  a  general  agent  puts 
an  end  to  the  right  of  stopping.     Moisseron  was  the  general 
agent  of  Le  Grand  &  Co.  of  Paris,  and  in  their  name  pur- 
chased goods  of  Leeds  at  Manchester,  to  be  sent  to  the  house  of 
Wright,  a  packer  in  London.     They  arrived  on  the  2d  of  Sep- 
tember, 1802.     Moisseron  came  there,  unpacked  the  goods,  and 
took  some  of  them  away,  and  had  the  rest  repacked.    On  the  7th 
of  September,  while  the  goods  repacked  Avere  still  at  the  packers, 
Le  Grand  &  Co.  having  failed,  Leeds  came  and  demanded  the 
goods.     Moisseron  had  authority  to  sell  the  goods  in  Loudon,  or 
send  them  to  any  part  of  Europe,  and  was  not  restricted  to  send 
them  to  Le  Grand  &  Co.  at  Paris.    The  seller  was  told  the  goods 
were  to  be  sent  to  London,  and  sent  them  there ;  and  the  right  of 
stoppage  was  h^ld  to  be  gone,  because  the  goods  had  arrived  at  the 
place  named  by  the  buyer  to  the  seller,  and  because  it  depended 
on  Moisseron  to  decide  whether  he  would  sell  them  there  or  export 
them,  and  whether  he  would  send  them  to  Paris  or  some  other 
place.     The  same  principles  governed  the  case  in  5  East,  175. 

27 


26  SUPREME  COURT  [PltUaddphia, 

[Bolin  and  others  v.  Huffiiagle,  Assignee,  4&c.] 

These  cases  were  reviewed  in  a  late  case,  6  Barnw.  &  Cressw. 
422,  Coates  v.  Railton,  and  sanctioned ;  bnt  this  distinction  is 
taken,  that  where  a  factor  or  general  agent  buys  goods  to  be  sent 
to  his  principal  at  his  residence  abroad,  the  transitus  is  not  at  an 
end  when  the  goods  come  into  possession  of  the  agent,  but  04>n- 
tinues  until  they  reach  the  principal ;  but  if  the  agent  buys  the 
goods  to  be  sent  to  a  market  or  sold  where  he  lives,  and  they 
may  as  well  be  sent  to  one  market  as  another,  there  the  delivery 
at  the  warehouse  of  the  agent,  or  named  by  the  agent,  puts  an 
end  to  the  right  of  stopping.  But  here  Captain  King  had  no 
power  or  authority  except  to  carry  the  goods  to  Sperry  and 
Stansbury.  Two  cases,  one  in  7  Mass.  R.  453,  Stubbs  v.  Lund, 
and  another  9  Mass.  R.  65,  are  to  the  point,  and  there  the  law 
is  stated  with  a  perspicuity  and  precision  usual  with  Chief 
Justice  Parsons. 

On  the  fullest  consideration  it  seems  to  me  to  be  settled,  that 
if  the  goods  have  arrived  at  the  place  named  by  the  buyer  to 
the  seller  as  their  destination,  as  between  them,  at  a  place  where 
the  buyer  has  full  and  absolute  power  to  sell  them  or  send  them 
wherever  he  pleases,  and  Avhere  they  must  stay  till  he  directs 
their  destination,  the  transitus  between  the  seller  and  buyer  is 
at  an  end,  and  this,  whether  the  goods  are  in  the  warehouse  of 
the  buyer  or  of  one  employed  by  him  for  the  purpose,  whether 
at  the  house  of  a  packer  designated  by  him  or  in  a  ship.  But 
if  thp  goods  are  purchased  for  a  particular  person,  whether  by  a 
special  or  general  agent,  to  be  sent  to  him  at  a  particular  place 
specified  to  the  seller,  they  are  iii  transitu,  until  they  come  to  the 
possession  of  the  buyer,  at  that  place,  and  may  be  stoj)ped  if 
the  purchaser  becomes  insolvent,  whether  in  the  hands  of  a 
general  or  special  carrier,  or  in  a  warehouse  or  in  a  ship,  and 
r*271  w^^^^^^^  t^^^*  s^^^P  "^^'^  chartered  by  the  buyer  *for  the 
L  -I  voyage,  or  hired  by  the  master,  or  owned  by  the  buyer ; 
for  the  passage  is  not  at  an  end ;  and  how  they  are  passing, 
whether  by  land  or  water,  is  not  material ;  and  I  can  find  no 
principle  which  makes  goods  more  in  a  man's  possession  or  more 
under  his  control  in  his  own  ship,  navigated  by  his  own  master, 
than  they  are  in  a  ship  chartered  on  freight,  for  the  express  pur- 
pose of  carrying  them. 

This  principle  it  is,  I  presume,  which  has  led  to  the  decision, 
that  if  the  insolvent  buyer  goes  out  to  sea,  and  meets  the  ship, 
and  goes  on  board  and  actually  touches  every  parcel,  yet  the  seller 
may  stop  the  goods  after  the  vessel  arrives,  and  before  they  are 
unloaded,  or  in  the  warehouse. 

A  storekeeper  in  one  of  our  towns  comes  and  buys  goods.    He 
loads  part  in  his  own  wagon  and  part  in  a  wagon  hired  for  the 
trip,  or  to  carry  at  so  much  per  hundred,  and  instantly  goes  and 
28. 


Dec.  29,  1828.]     OF  PENNSYLVANIA.  27 

[Bolin  and  others  v.  Huffhagle,  Assignee,  Ac] 

assigns  all  his  property.  I  see  no  principle,  and  on  a  careful 
examination  I  can  find  no  case,  which  forbids  the  merchant  to 
follow  and  stop  the  goods  in  the  one  wagon  as  well  as  the  other, 
if  he  can  overtake  them  before  they  reach  the  storehouse  of  the 
buyer.     In  the  one  and  the  other,  they  are  on  their  passage. 

The  wines  and  raisins  here,  were  on  their  passage,  and  I  should 
suppose  the  plaintiffs'  right  not  gone. 

J.  Smith,  concurred,  with  Huston,  J. 

Judgment  for  the  defendant. 

Cited  by  Counsel  in  6  C.  258 ;  2  Wright,  416  ;  5  S.  309 ;  1  G.  122 ;  2  G.  817. 

Tlie  law  as  laid  down  in  this  ca.se  holds  in  England,  Van  Casteel  v.  Booker, 
2  Exch.  691,  but  perhaps  not  in  tlie  great  commercial  centres  of  this  country. 
Cross  V.  O'Donnell,  44  N.  Y.  666 ;  Stubbs  v.  Lund,  7  Mass.  453.  Tlie  case  in 
hand  has  since  been  followed  in  this  State,  Thompson  v.  Stewart,  7  Phila.  187, 
but  the  cases  generally  have  tended  to  confine  the  operation  of  the  rule  to 
the  particular  facts  which  first  called  it  forth,  namely,  a  delivery  on  board  the 
vendee's  own  vessel.  Therefore  a  delivery  of  the  goods  to  the  vendee's  agent 
who  in  turn  delivers  them  to  an  independent  carrier  does  not  terminate  the 
transit.  Hays  v.  Mouille,  2  H.  48 ;  nor  does  an  intermediate  delivery  to  such 
an  agent,  who  forwards  the  goods  ifnder  the  original  orders,  Cabeen  v.  Camp- 
beD,  6  C.  254. 

In  Donath  v.  Broomhead,  7  Barr,  301,  it  was  held  where  the  goods  were 
shipped  from  a  foreign  port,  that  the  transit  continued  until  entry  at  the 
Custom  house,  and  the  fact  that  the  freight  was  paid,  and  the  goods  were  not 
entered  only  because  the  invoice  could  not  be  found,  did  not  alter  the  case. 

A  vendee  may  decline  to  receive  the  goods  on  account  of  his  insolvency  and 
the  vendor's  right  then  remains  as  against  attaching  creditors  of  the  vendee, 
Kahnweiler  v.  Buck,  2  Pears.  69. 

If  a  vendor  have  a  right  of  stoppage  in  transitu,  a  fortiori  he  has  a  right  of 
retainer  in  possession.  White  v.  Welsh,  2  Wr.  396  ;  and  a  partial  delivery  does 
not  affect  this  right  as  to  the  remainder,  Wanamaker  v.  Yerkes,  20  S.  443. 


[Philadelphia,  December  29, 1828.] 

Pastorius  against  Fisher. 

IN  EBKOR. 

In  an  action  for  overflowing  the  plaintiff's  land,  by  the  erection  of  a  dam 
on  the  land  of  the  defendant,  in  which  the  nature  and  extent  of  the  alleged 
injury  are  specially  described  in  the  declaration,  the  plaintiff  is  entitled  to  a 
verdict  for  nominal  damages,  though  he  fail  to  prove  the  particular  iiyury 
complained  of,  or  any  other  actual  injury. 

This  was  a  special  action  on  the  case,  brought  by  the  plain- 
tiff in  error  against  the  defendant  in  error,  in  the  District  Court 
for  the  city  and  county  of  Philadelphia,  to  recover  damages  for 
an  injury  done  to  the  plaintiff's  land  by  the  erection  of  «,  dam 
on  the  land  of  the  defendant. 

The  injury  complained  of,  which  was  specially  set  forth  in  the 
declaration,  was,  that  the  defendant  had  erected  a  mill  dam  upon 

29 


27  SUPREME  COURT  [Philadelphia, 

[Pastorius  v.  Fisher.] 

his  own  land,  wliich  caused  the  water  to  flow  back  upon  the  landj 
of  the  plaintiff,  and  made  it  so  spongy  and  rotten  that  he  coulcfc 
not  erect  buildings  for  the  printing  of  calico,  by  reason  whereof  I 
he  had  sustained  damage  to  a  certain  specified  amount. 

His  Honour,  Judge  Hallowell,  before  whom  the  cause  was 
r*98l  *^'*'^^>  delivered  to  the  jury  a  charge,  which  was  excepted 
L  "■  J  to  by  t^he  counsel  for  the  plaintiif,  who,  in  this  court  as- 
signed the  following  errors : 

1.  The  judge  erred  in  giving  it  in  charge  to  the  jury,  that  the 
allegation  of  the  plaintiif,  in  his  declaration,  of  the  way  in  which 
he  had  sustained  damage  by  the  overflowing  of  his  knd  in  con- 
sequence of  the  erection  and  maintenance  of  the  defendant's  dam, 
is  matter  of  substance,  and  that  the  plaintiff  must  prove  that  he 
sustained  damage  in  that  particular  way. 

2.  The  judge  erred  in  giving  it  in  charge  to  the  jury,  that  the 
plaintiff  could  not  recover,  merely  on  proof  that  the  defendant 
had  caused  the  water  to  back  upon  and  overflow  the  plaintiff's 
land ;  and  that  the  jury  could  not  find  for  the  plaintiff,  unless 
actual  damage  were  proved. 

Lowher,  for  the  plaintiff  in  error,  said,  that  the  question  was, 
whether  or  not,  in  an  action  for  a  nuisance,  the  plaintiff,  whose 
right  has  been  invaded,  must,  to  entitle  himself  to  a  verdict, 
prove,  that  he  has  sustained  actual  damage.  He  contended,  that 
the  law  was  well  settled,  that,  in  order  to  determine  the  right, 
the  plaintiff  was  entitled  to  i^ominal  damages,  although  it  did  not 
appear  that  he  had  suffered  actual  injury  from  the  act  complained 
of.  In  support  of  his  position,  he  cited  Angel  on  Water  Courses, 
149,  Appendix;  Skin  175;  Whitmore  v.  Calton,  1  Gall.  Rep. 
476. 

Scott,  for  the  defendant  in  error,  answered,  that  the  action 
was  to  recover  damages  for  an  alleged  injury,  the  nature  and  ex- 
tent of  which  were  very  specially  set  out  in  the  declaration.  This 
specified  injury  was  the  gist  of  complaint,  and  the  sole  object  of 
inquiry  at  the  trial.  The  jury  has  declared,  that  the  only  injury 
pretended  to  have  been  sustained,  has  not  been  sustained.  There 
is  a  gross  inconsistency,  therefore,  in  saying,  that  the  plaintiff 
ought  to  have  had  a  verdict  for  nominal  damages.  In  a  case  like 
this,  the  plaintiff  cannot  recover,  unless  he  prove  that  he  has 
sustained  both  wrong  and  injury.  Neither  injuria  absque  damno, 
nor  damnum  absque,  injuria,  will  support  the  action.  He  cited 
and  relied  upon  Ashbey  v.  White,  6  Mod.  46  ;  Hob.  267  ;  Bull. 
N.  P.  120 ;  Palmer  v.  MuUiken,  3  Caines,  307  ;  Angel  on  Water 
Courses,  51. 
30 


i>ec.  29,  1828.]     OF  PENNSYLVANIA.  28 

[Pastorius  v.  Fisher.] 

P.  A.  Browne,  wli  tn  about  to  reply,  was  stopped  by  the  court, 
whose  opinion  was  delivered  by 

Gibson,  C.  J. — The  principal  point  was  determined  in  Alex- 
ander V.  Kerr,  during  the  last  term  at  Pittsburg,  where  it  was 
held,  that  the  law  implies  damage  for  flooding  the  ground  of 
another,  though  it  be  in  the  least  possible  degree,  and  without 
actual  prejudice ;  and  the  same  principle  was  ruled  at  Sunbury, 
the  term  preceding,  in  a  case  the  name  of  which  is  not  recol- 
lected. But  where  the  law  implies  the  injury,  it  also  implies  the 
lowest  damages,  except  in  cases  of  personal  injury,  where  dam- 
ages are  given,  not  to  compensate,  but  to  punish.  Here,  however, 
it  is  said,  the  plaintiff  undertook  to  prove  special  damage,  and, 
therefore,  staked  his  case  on  the  event.  *But,  surely  an  r;|:OQ-| 
attempt  to  prove  an  injury  beyond  what  the  law  implies,  ■-  -^ 
is  not,  necessarily,  a  relinquishment  of  damages  for  everything 
short  of  the  whole  case.  Where  the  plaintiff  goes  for  special  dam- 
age, he  must  lay  it ;  else  he  shall  not  give  evidence  of  it.  But 
the  converse  of  the  rule  does  not  hold — that  having  laid  it,  he 
must  prove  it  or  fail  altogether.  It  would  be  neither  reasonable 
or  just  to  compel  him  to  elect  between  real  and  nominal  damages ; 
or  to  refuse  compensation  so  far  as  a  substantial  cause  of  action 
has  been  proved.  The  action  may  be  brought  to  try  the  right,  and 
the  verdict,  being  conclusive,  would  stand  in  the  way  of  a  re- 
covery for  a  substantial  injury,  if  any  were  suffered  afterwards. 
It  was  error,  therefore,  to  charge  against  the  plaintiff's  right  to 
nominal  damages. 

Judgment  reversed,  and  a  venire  facias  de  novo  awarded. 

Cited  by  Counsel,  5  Wh.  594;  5  H.  175;  6  H.  502;  12  C.  363;  6  Wright, 
64 ;  5  S.  358 ;  10  S.  51 ;  19  S.  99. 

Cited  by  the  Court,  7  W.  &  S.  12 ;  4  Barr,  488 ;  7  Barr,  365 ;  9  C.  149. 

In  Ripka  v.  Sergeant,  7  W.  &  S.  9,  the  decision  of  this  case  that  the  law  im- 
plies damages  from  the  flooding  of  a  person's  ground,  was  re-affirmed,  and  the 
remedy  extended  to  the  reversioner. 

Every  invasion  of  a  right  is  in  contemplation  of  law  a  constructive  damage, 
and  to  recover  nominal  damages  no  special  damage  need  be  shown.  Williams 
V.  Esling,  4  Barr,  486.  An  injunction,  however,  being  of  grace  only,  will  not 
be  granted  unless  special  damage  be  shown,  Mayor  v.  Commissioners,  7  Barr, 
348. 


31 


29  SUPREME  COURT  [PhUadelphia, 


[Philadelphia,  December  29, 1828.] 
The  Commonwealth  against  West. 

IN  ERROR. 

A  prothonotary,  who  has  received  one  thousand  five  hundred  dollars  for  each 
year  lie  was  in  office,  is  bound  to  account  for,  and  pay  over  to  the  common- 
wesiltli,  fifty  per  cent,  upon  all  fees  earned  wliile  he  was  in  office,  and  received 
by  his  successor,  and  paid  over  to  hira  aiter  he  has  gone  out  of  office. 

But  the  sureties  in  his  official  bond,  are  not  liable,  in  case  of  his  omission  to 
account  for,  and  pay  over  the  amount  due  to  the  commonwealth,  upon  the  fees 
thus  received. 

On  a  writ  of  error  to  the  District  Court  for  the  city  and 
county  of  Philadelphia,  it  appeared,  tliat  this  was  a  scire  facias, 
issued  to  the  December  term,  1827,  by  the  Commonwealth  of 
Pennsylvania,  against  Timothy  Matlack,  late  prothonotary  of 
the  said  court,  and  William  AVest  and  George  Worrell,  his  sure- 
ties, on  a  judgment  for  four  thousand  five  hundred  dollars,  ob- 
tained on  the  16th  of  February,  1824,  on  the  prothonotary's 
official  bond. 

A  case,  of  which  the  following  is  the  substance,  was  stated 
for  the  opinion  of  the  court  below,  to  be  considered  as  a  special 
verdict. 

Timothy  Matlack  was  appointed  prothonotary  of  the  District 
Court  for  the  city  and  county  of  Philadelphia,  by  a  commission 
dated  the  28th  of  February,  1821,  and  on  the  6th  of  March, 
1821,  entered  into  a  bond  to  the  Commonwealth,  in  the  penal 
sum  of  four  thousand  five  hundred  dollars,  with  William  West 
and  George  Worrell,  as  his  sureties.  The  bond,  after  reciting 
the  appointment  and  commission  of  Mr.  Matlack,  as  prothono- 
tary, contained  a  condition  in  these  words  : 

"  Now,  the  condition  of  the  above  obligation  is  such,  that  if 
the  above  bounden,  Timothy  Matlack,  shall,  and  does  well  and 
r*qn-i  truly  *and  faithfully,  in  all  things,  execute  and  perform 
•-  -■  the  duties  of  the  said  office  according  to  law,  and  shall 
also,  well  and  faithfully  account  for  and  pay  over  unto  the  state 
treasury,  all  public  moneys  which  shall  come  to  his  hands  from 
time  to  time  during  his  continuance  in  the  said  office,  and  also 
shall,  when  thereunto  lawfully  required,  deliver  up  the  records 
and  other  writings  with  the  seal  to  the  said  office  belonging, 
whole,  safe  and  undefaced,  to  his  lawful  successor  therein,  then 
this  obligation  to  be  void,  or  else  to  be  and  remain  in  full  force 
and  virtue." 

Between  the  15th  day  of  March,  1823,  and  the  4th  day  of 
October,  1826,  both  days  inclusive,  the  said  Timothy  Matlack 
32 


Dec.  29,  1828.]      OF   PENNSYLVANIA.  30 

[The  Commonwealth  v.  West.] 

received  from  John  Goodman,  Esq.,  his  successor  in  office,  and 
Randall  Hutchinson,  Esq.,  also  his  successor  in  office,  the  sum 
of  nine  hundred  and  two  dollars  and  fifty -eight  cents,  at  the 
days  and  in  the  sums  mentioned  in  a  certain  ac;count,  a  copy  of 
which  was  annexed  to,  and  made  j^art  of  the  case. 

The  said  Timothy  Matlack  received  more  than  fifteen  hundred 
dollars  per  annum,  during  his  continuance  in  the  said  office. 

The  Commonwealth  ohiimed,  under  the  acts  of. assembly  in 
such  case  made  and  provided,  the  sum  of  four  hundred  and 
fifty-one  dollars  and  twenty-nine  cents,  being  fifty  per  cent,  on 
the  said  sum  of  nine  hundred  and  two  dollars  and  fifty-eight 
cents. 

Judgment  having  been  entered  on  the  16th  day  of  February, 
1824,  for  four  thousand  five  hundred  dollars  on  the  said  bond, 
this  scire  facias  was  issued  to  recover  the  amount  claimed  by 
the  Commonwealth. 

The  writ  of  scire  facials  Avas  returned  "served,"  as  to  William 
West,  and  "  N.  E.  I."  as  to  the  other  defendants. 

Upon  the  case  stated,  the  District  Court  rendered  judgment 
in  favour  of  the  defendant ;  whereupon  a  writ  of  error  was 
taken  out  by  the  Commonwealth. 

In  this  court  two  questions  were  argued  : 

1.  Is  Tmiothy  Matlack  bound  to  pay  the  Commonwealth  the 
amount  claimed  ? 

2.  If  he  is  so  bound,  is  William  West,  his  surety,  liable  upon 
the  bond  ? 

Peitit,  for  the  commonwealth,  referred  to  the  Act  of  the  10th 
of  March,  1810,  sect.  1,  Purd.  Dig.  608  ;  Act  of  the  24th  of 
March,  1818,  Purd. .  Dig.  609  ;  Commonwealth  v.  Fitler,  12 
Serg.  &  Rawle,  277 ;  Lea  v.  Yard,  4  Dall.  95 ;  s.  c.  3  Yeates, 
344;  Roth  y.  Miller,  15  Serg.  &  Rawle,  107;  Commonwealth 
V.  Wolbert,  6  Binu.  292,  296,  298  ;  Carmack  v.  Commonwealth, 
5  Binn.  184. 

J.  Randall,  contra,  cited  Act  of  the  13th  of  March,  1817, 
sect.  2,  Purd.  Dig.  423 ;  Miller  v.  Stuart,  9  Wheat.  680 ;  Ar- 
lington V.  Merricke,  2  Saund.  411,  (note);  Stibbs  t;.  Clough, 
1  Str.  227 ;  Wright  v.  Russell,  3  Wils.  530 ;  Montague  v. 
Tidcomb,  2  Vern.  518 ;  Harrison's  Index,  286 ;  Warner  v. 
*Racy,  20  Johns.  74  ;  Quin  v.  The  State,  1  Harr  &  Johns,  r-^o-.  -, 
36  ;  Commonwealth  v.  Baynton,  4  Dall.  282.  l       -• 

The  opinion  of  the  court  was  delivered  by 
Gibson,  C.  J. — There  cannot  be  a  doubt,  that  the  prothono- 
tary  himself  would  be  liable ;  not  however,  by  force  of  the  bond, 
VOL.  I.  —  3  33 


31  SUPREME   COURT  [Philadelphia, 

[The  Commonwealth  v.  West.] 

but  the  act  of  assembly.  Although  it  may  be  expressed  in  the 
act,  that  he  shall  account  as  if  he  hacl  been  in  office  at  tlie  time 
of  receiving,  the  plain  meaning  is,  that  he  shall  account  as  if  the 
fees  had  been  received  when  he  was  in  office.  He  is  to  account 
only  for  the  excess  above  a  given  sura,  which  it  would  be  impossi- 
ble to  ascertain,  as  no  one  could  tell  what  would  have  been  the 
amount  of  his  receipts  had  he  remained  in  the  office.  The  terms 
of  the  act  of  1818,  clearly  embrace  the  case  of  the  officer;  but 
the  surety  is  liable  no  further  than  he  is  made  so  by  the  clear 
and  explicit  terms  of  his  contract.  The  condition  of  the  bond 
Ls,  that  the  prothonotary  "  shall  faithfully  execute  and  perform 
the  duties  according  to  law,  and  shall  also  well  and  faithfully 
account  for,  and  pay  over  into  the  state  treasury,  all  public 
moneys  that  shall  come  to  his  hands,  from  time  to  time,  during  his 
continuance  in  the  said  office."  By  the  letter  of  the  latter  clause, 
the  liability  of  the  surety  is  restrained  to  moneys  received  while 
in  office.  But  it  is  insisted,  that  the  accounting  for  fees  received 
afl:er  the  expiration  of  the  official  term,  is,  nevertheless,  an 
official  duty  ;  because,  fees  being  earned  in  an  official  character, 
could  be  recovered  and  accounted  for  in  no  other ;  consequently, 
that  the  surety  is  liable  on  the  general  clause  for  the  faithful  ex- 
ecution of  the  office.  To  this  there  are  two  decisive  objections :  the 
first,  that  the  parties  themselves,  did  not  intend  to  provide  for 
this  part  of  the  subject  by  the  general  clause,  having  provided 
for  it  specially ;  and  the  second,  that  the  general  clause  could  be 
made  subservient  to  the  purpose,  only  by  straining  and  inference, 
which  are  never  employed  to  enlarge  the  responsibility  of  a 
surety.  The  contract  of  suretyship  is  one  of  mere  benevolence, 
and  is  not  to  be  carried  further  than  the  natural  import  of  the 
words,  because  it  would  be  unjust  to  intend,  that  one  who  is  to 
derive  no  benefit,  would  consent  to  be  bound  further  than  he 
chooses  to  express.  In  doubtful  cases,  therefore,  the  construc- 
tion is  to  be  favourable  to  the  surety.  I  certainly  do  not  pre- 
tend, that,  at  law,  the  liability  of  a  surety,  especially  on  a  joint 
obligation,  is  to  be  distinguished  from  that  of  the  principal ;  and 
if  the  prothonotary  were  before  us,  in  an  action  on  this  bond,  I 
would  not  hold  him  liable.  But  that  the  case  of  the  surety 
should  draw  after  it  that  of  the  principal,  is  surely  more  reason- 
able than  the  converse  of  the  proposition. 

To  a  common  apprehension,  then,  an  engagement  for  the  faith- 
ful performance  of  an  office,  would  seem  to  relate  to  its  immedi- 
ate duties,  and  not  to  those  that  are  remote  and  consequential. 
•  But  the  act  of  accounting  for  fees,  even  while  in  office,  is,  per- 
r*ooi  ^^^P^?  °^*  strictly  *an  official  duty,  as  it  relates  to  a  tax 
L  -•  on  the  accountant's  property,  which  is  due  by  him,  person- 
ally, and  not  in  an  official  capacity.  But  there  is,  surely,  nothing 
34 


Dec.  29,  1828.]      OF  PENNSYLVANIA.  32 

[The  Commonwealth  v.  West.] 

of  an  official  cast  in  the  act,  after  the  functions  of  the  officer 
have  ceased,  because  a  refusal  to  perform  it  would  not  subject 
him  to  impeachment.  But  the  parties  are  not  supposed  to  have 
weighed  matters  such  as  these.  The  natural  and  obvious  pur- 
pose of  the  clause,  was  to  give  assurance  of  diligence  and  faith- 
fulness during  the  tenure  of  the  office,  and  not  to  continue  the 
responsibility  of  the  surety,  indefinitely,  afterwards. 

Huston,  J. — This  case  was  argued  on  two  grounds  :  1 .  That- 
T.  Matlack  is  not  liable ;  and,  secondly,  that  if  he  is  liable,  yet 
his  sureties  are  not. 

Whether  T.  Matlack  himself  is  liable,  depends  on  the  several 
acts  of  assembly. 

The  act  of  the  21st  of  March,  1777, 1  State  Laws,  (M'Kean's,) 
58,  requires  all  prothonotaries  to  give  bond,  &c.,  &c.,  for  the 
faithful  execution  of  their  offices,  and  for  the  delivery  of  all 
books,  records,  papers,  and  seals,  belonging  to  their  respective 
offices  aforesaid,  whole,  safe,  and  undefaced,  to  the  person  who 
shall  be  appointed  to  succeed  them.  (See  the  preamble  and 
schedule  to  the  present  constitution  and  article  1st,  which  pro- 
vides that  all  laws  of  this  commonwealth  in  force  at  the  time  of 
making  the  said  alterations  and  amendments  in  the  said  consti- 
tution, and  not  inconsistent  therewith,  shall  continue,  as  if  the 
said  alterations  and  amendments  had  not  been  made.) 

The  act  of  the  10th  of  March,  1810,  Purd.  Dig.  608,  enacts, 
that  prothonotaries,  &c.,  &c.,  shall  keep  fair  and  accurate  ac- 
counts of  all  fees  received  for  services  performed  by  them  or  for 
them  in  their  respective  offices ;  and  shall  annually  furnish  an 
account  thereof  under  oath  or  affirmation  to  the  auditor  general, 
who  shall  examine  the  same,  and,  whenever  the  amount  exceeds 
fifteen  hundred  dollars  per  annum,  the  auditor  general  shall 
charge  the  said  officer  fifty  per  cent,  on  the  excess,  which  shall 
be  paid  by  the  said  officer  into  the  treasury  of  the  state. 

By  the  act  of  the  24th  of  March,  1818,  Purd.  Dig.  609,  it  is 
provided  "  In  case  of  the  resignation  or  removal  of  any  officer 
who  by  law  is  accountable  to  the  state  for  certain  surplus  fees  of 
office,  it  shall  be  the  duty  of  his  successor  in  office,  who,  from 
time  to  time  may  receive  a,nd  pay  over  such  fees  to  his  prede- 
cessor, to  take  duplicate  receipts  for  the  same,  and  to  transmit 
one  of  the  said  receipts  to  the  auditor  general,  together  with  a 
statement  of  such  fees  as  may  otherwise  be  received  by  the  said 
predecessor,  as  far  as  he  may  be  able  to  ascertain  the  same.  And 
it  shall  be  the  duty  of  the  auditor  general  to  settle  the  accounts 
of  the  late  officer,  to  whom  such  fees  shall  have  been  paid,  and 
compel  him  to  account  upon  oath,  and  to  pay  over  such  propor- 
tion of  the  arrearages  of  fees  so  received  as  would  have  been  paid 

35 


33  SUPREME  COURT  [Philadelphia, 

[Tlie  Commonwealth  v.  West.] 

r*W\  ^®  ^^^^  state,  had  he  remained  *in  office,  allowing  to  such 
*-  -I  officer,  in  case  of  deficiency,  in  any  year  while  he  shall 
have  held  his  said  office,  silch  sura  as  shall  make  up  the  whole 
sura  he  would  have  been  entitled  to  have  retained,  free  from  any 
tax  thereon." 

It  has  been  argued  that  in  construing  the  last  sentence  of  the 
act  of  the  24th  March,  1818,  we  must  stop  at  the  words  had  he 
remained  in  office,  and  that  the  latter  part  of  the  sentence  has 
no  connection  with  or  influence  on  the  sense  of  the  former.  If 
this  were  so,  it  would  introduce  a  new  chapter  on  construction, 
and  lead  to  a  mode  of  ascertaining  the  meaning  of  a  law  totally 
different  from  what  has  been  used  since  reading  and  writing 
came  into  use.  Though  these  laws  are  not  written  in  the  most 
perspicuous  language,  the  meaning  cannot  be  mistaken  by  any 
but  one  whose  interest  it  is  to  mistake  it.  The  construction  is 
that  each  officer  within  its  provisions  has  a  right  to,  and  is  to  re- 
tain fifteen  hundred  dollars  each  year  he  continues  in  office,  and 
pay  to  the  commonwealth  the  one-half  of  any  sum  he  receives 
above  fifteen  hundred  dollars.  If  he  receives  fees  for  services 
performed  while  in  office,  after  going  out  of  office,  he  is  to  ac- 
count precisely  as  if  such  fees  had  been  received'  while  he  was 
in  office.  If  no  year  produced  fifteen  hundred  dollars  while  he 
was  in  office,  and  he  received  fees  after  going  out  of  office,  the 
commonwealth  had  no  right  to  any  part  of  this  until  he  had 
made  each  year  of  the  office  produce  fifteen  hundred  dollars.  If 
fifteen  hundred  dollars  per  annum  during  his  office  is  received, 
the  commonwealth  is  entitled  to  half  of  all  received  afterwards ; 
for  no  law  ever  contemplated  that  any  one  should  continue  to 
receive  fifteen  hundred  dollars  per  year  after  his  office  had  ex- 
pired. 

The  court  is  unanimous  in  the  opinion  that  Mr.  Matlack,  the 
officer,  is  bound  to  pay  to  the  commonwealth  the  sum  demanded. 

But  admitting  that  Mr.  Matlack  is  liable,  it  has,  however,  been 
earnestly  contended  that  the  defendant,  his  surety,  is  not.  And, 
first,  as  to  the  law  respecting  the  liability  of  a  surety.  The  of- 
ficer and  the  surety  sign  the  same  bond,  and  same  condition,  are 
bound  by  the  same  instrument ;  and  I  know  of  no  principle  of 
law  which  carries  the  liability  of  the  principal  one  jot  beyond 
that  of  the  surety,  so  far  as  depends  on  the  bond,  unless  in 
consequence  of  something  which  occurred  on  the  part  of  the 
obligee  after  the  execution  of  the  bond,  or  of  some  fraud,  in  fact 
or  law,  at  or  before  the  execution  of  the  instrument. 

I  shall  notice  the  cases  relied  on  by  the  defendant.  The  first 
is  in  2  Saund.  411,  Arlington  v.  Merricke.  A  person  was  ap- 
pointed deputy  postmaster  for  six  months,  and  gave  bond  with 
the  defendant  as  surety  for  the  performance  of  the  duties  of  his 
36 


Dec.  29, 1828.]       OF  PENNSYLVANIA.  33 

[The  Commonwealth  v.  West.] 

office.  His  appointment  was  renewed,  and  he  continued  after 
the  six  months,  and  became  a  defaulter ;  and  in  a  suit  on  the 
bond,  it  was  decided  that  the  recital  of  an  appointment  liraitetl 
the  obligation  to  that  appointment,  and  that  the  surety  was  not 
bound  for  what  did  not  occur  under  it.  All  the  cases  cited  in 
the  note  go  this  length,  and  no  further,  and  conclude  r=t:o  i-j 
*that  a  surety  is  liable  only  according  to  and  within  the  ^  J 
scope  of  his  engagement. 

The  case  in  9  Wheat.  702,  703,  does  not  carry  the  law,  nor 
profess  to  carry  it,  beyond  those  cases.  The  only  real  contest 
there  was,  whether  the  default  occurred  under  the  appointment 
recited  in  the  bond,  or  under  a  different  one ;  and  the  only  posi- 
tions of  general  application  are,  "A  surety  is  not  to  be  held 
liable  by  implication  beyond  the  terms  of  his  contract ;  to  that 
extent,  and  in  the  manner  and  under  the  circumstances  pointed 
out  in  his  obligation,  he  is  bound,  and  no  further."  The  words 
of  a  judge  are  to  be  taken  in  reference  to  the  case  trying ;  that 
is  in  his  mind — with  reference  to  the  facts  of  that  case  he  is 
speakiug.  If  this  is  not  kept  in  mind,  error  and  confusion  will 
follow.  The  judge's  expressions  are  true  in  the  case  before 
him,  perhaps  in  all  cases ;  but  he  does  not  say  or  intimate  that 
the  instrument  is  to  be  construed  in  one  way  in  a  suit  agaiust 
the  principal,  and  in  a  different  way  where  a  surety  is  defendant. 
And  I  do  not  know  that  any  court  ever  said  so.  20  Johns.  74, 
is  a  short  and  not  very  explicit  case.  There,  a  form  of  bond 
was  prescribed  by  law;  the  officer  gave  a  bond  essentially  dif- 
ferent from  this  form,  as  the  court  thought ;  and  the  case  trying 
did  not  come  within  the  provision  of  the  bond  given ;  that  is 
not  this  case. 

In  6  Binn.  292,  Commonwealth  v.  Wolbert  et  al.,  the  surety 
did  not  allege  that  he  was  not  originally  liable,  but  contended 
he  was  discharged  by  the  conduct  of  the  officers  of  the  com- 
monwealth. I  shall  not  enter  into  a  vindication  of  the  policy 
of  requiring  sureties  of  public  officers,  because  it  needs  no  vin- 
dication, and  because  if  it  did,  that  cannot  affect  our  decisions 
on  those  bonds.  Is  this  within  the  true  meaning  and  intention 
of  the  bond  ?  What  do  the  words,  "  Well  and  truly  and  faith- 
fully, in  all  things,  execute  and  perform  the  duties  of  the  said 
office,  according  to  law,"  mean?  The  law  directed  the  officer 
to  pay  over  this  money  ;  he  accepted  the  office  on  tiie  terms  of 
doing  so ;  it  was  his  duty  to  do  so.  Although  it  occurred  after 
the  office  expired,  yet  it  was  a  consequence  of  the  office,  arose 
out  of  it,  or,  rather,  it  was  still  a  part  of  it ;  as  a  sheriff  may 
sell  goods  levied  on  while  in  office,  may  return  writs,  &c.,  after 
his  office  has  expired,  and  an  auctioneer  who  has  sold  goods  and 
taken  notes  while  in  office  may  collect  the  money  after  he  is  out 

37 


34  SUPREME  COURT  [Philadelphia, 

[The  C!ommon wealth  r.  West.] 

of  office,  and  he  and  his  sureties  are  liable  to  the  party  interested 
if  he  docs  not  pay  that  money  to  the  |)erson  entitle^!. 

The  case  in  4  Dall.  96,  is  much  stronger  than  this.  There 
were  two  cases  on  two  several  official  bonds  of  auctioneers 
against  sureties.  In  the  one  the  words  were,  "  If  the  said  R. 
S.  F.  shall  well  and  faithfully  discharge  and  perform  all  the 
duties  of  an  auctioneer;"  in  the  other,  "Shall  well  and  faith- 
fully execute  the  above  office  of  auctioneer  according  to  law,  and 
shall  from  time  to  time  well  and  truly  account  for  all  public 
moneys  which  shall  come  into  his  hands,  and  pay  the  same  into 
the  treasury  of  the  state,"  &c.  The  suits  were  not  by  the  state, 
but  by  individuals  whose  goods  the  principals  had  sold,  and 
r*9rl  *whose  money  they  had  collected  and  not  paid  over. 
L  -I  Smith,  J.,  says,  "  Where  there  is  a  joint  obligation,  the 
law  does  not  abstractedly  recognize  the  character  of  a  surety ; 
and  after  all,  sureties  must  be  bound  according  to  the  true  con- 
struction of  the  obligation,  whatever  may  be  the  form  of  ex- 
pression ; "  and  Brackenridge,  J.,  says  the  bond  embraces  every 
duty  which  the  officer  is  bound  to  perform ;  and  judgment  for 
the  plaintiff  was  unanimously  affirmed  by  the  High  Court  of 
Errors  and  Appeals.  According  to  this  decision,  then,  this  first 
and  general  clause  will  embrace  not  only  this  debt,  which  it  was 
the  duty  of  the  officer  to  pay  to  the  state,  but  any  money  paid 
into  court,  and  which  it  was  his  duty  to  pay  to  a  private  suitor ; 
and  it  further  decides  that  a  second  clause,  specifying  an  obliga- 
tion to  pay  a  particular  claim — that  is,  specifying  a  particular 
duty — does  not  limit  or  restrain  the  general  obligation  to  per- 
form all  the  duties  of  the  office.  Besides,  what  is  called  the 
second  part  of  the  obligation,  "  to  pay  into  the  state  treasury, 
from  time  to  time,  all  public  moneys  which  shall  come  to  his 
hands  during  his  continuance  in  the  said  office,"  is  referrable  to 
a  distinct  matter.  All  recognizances  in  the  sessions  are  sued  in 
the  Common  Pleas,  and  the  money,  when  collected,  is  paid  into 
court ;  so,  all  the  fines  on  defaulting  jurors,  or  for  contempt,  &c., 
&c.  To  these  the  officer  has  no  right ;  they  are  emphatically 
public  moneys,  which  come  in  from  time  to  time.  The  common- 
wealth's share  of  that  portion  of  fees  which  exceeds  fifteen 
hundred  dollars  is  not  so  distinctly  public  money,  but  is  in  effect 
the  officer's  money ;  at  least  till  the  settlement  of  his  account, 
or  until  its  amount  is  ascertained  in  some  other  way. 

To  conclude,  these  official  bonds  are  of  immense  importance 
in  this  country.  The  commission,  though  made  out,  is  never 
delivered  until  the  bond  is  executed.  The  safety  of  the  citizens, 
and  security  of  the  money  of  the  state,  depend  in  a  great  degree 
on  them.  Their  object  is  open  and  well  understood,  their  con- 
struction long  and  repeatedly  settled.  The  sureties  sign  them 
38 


Dee.  29,  1828.]      OF  PENNSYLVANIA.  35 

[The  CJommou wealth  v.  West.] 

with  a  knowledge  of  all  this.  The  law  is  settled,  (see  the  ca'=;es 
cited,  and  15  Serg.  &  Rawle,  107,  that  there  cannot  be  one  con- 
struction as  to  one  obligor,  and  another  as  to  a  second  obligor, 
(except  as  before  stated.)  For  these  reasons  I  have  come  to  the 
conclusion  that  the  defendant  is  liable,  but  a  majority  of  the 
court  think  otherwise. 

Judgment  affirmed. 

Cited  by  Cbunsel,  3  Penn.  R.  184 ;  1  M.  179  ;  1  W.  286 ;  3  W.  283 ;  6  Barr, 
117  ;  1  S.  369 ;  11  S.  229 ;  32  S.  469 ;  6  O.  599 ;  10  W.  N.  C.  148. 

Commented  on  and  followed  in  8  W.  62 ;  6  Barr,  125. 

Cited  by  the  Court,  12  Wright,  449. 

Cited  by  Auditor,  11  W.  N.  C.  462. 

A  provision  in  a  statute  that  the  bond  of  a  surety  of  an  officer  for  one  term 
shall  be  binding  during  subsequent  terras  if  the  officer  be  re-elected,  is  valid. 
Water's  Ap.,  10  W.  N.  C.  146 ;  Castor's  Ap.,  11  Id.  461. 


[*36] 

*[PHiiiADELPHiA,  Decesibeb  29,  1828.] 


Phillips  against  Ives. 


IN   ERROR. 


No  wager  concerning  any  human  being  is  recoverable  in  a  Court  of  Justice. 

Therefore,  a  wager,  whether  or  not  Napoleon  Bonaparte  would,  within  a 
specified  time,  be  removed  or  escape  from  the  island  of  St.  Helena,  was  hdd  to 
be  illegal  and  void. 

Error  to  the  District  Court  for  the  city  and  county  of  Phila- 
delphia. 

John  Phillips,  the  plaintiff  in  error,  brought  this  action 
against  Stephen  Ives,  the  defendant  in  error,  to  recover  the 
amount  of  a  wager,  the  evidence  of  which  was  a  written  paper 
in  these  words : 

"May  the  14th,  1821. — This  day  Stephen  Ives  bet  one  hun- 
dred dollars  to  fifty  dollars  with  John  Phillips,  that  Napoleon 
Bonaparte  will,  at  or  before  the  expiration  of  two  years  from 
the  above  date,  be  removed  or  escape  from  the  island  of  St. 
Helena.  It  is  understood  between  the  parties  that  if  Bonaparte 
should  die  within  the  above  period  of  two  years,  and  on  the 
island  of  St.  Helena,  Mr.  Ives  loses  the  bet. 

(Signed,)  "Stephen  Ives, 

"John  Phillips." 
"  This  bet  is  made  in  the  presence  of 

"  John  F.  Swift." 

It  was  proved  on  the  trial  that  the  defendant  acknowledged 
he  had  lost  the  wager,  and  a  verdict  was  given  for  the  plaintiff, 

39 


36  SUPREME  COURT  [Fhiladdphki, 

[Phillips  r.  Ives.] 

subject  to  the  opinion  of  the  court.  The  opinion  of  the  court 
was  divided  on  the  subject.  The  President  held  that  the  wager 
was  good  and  the  action  sustainable.  One  of  the  associate 
judges  was  of  opinion,  that,  under  no  circumstances  whatever, 
could  an  action  be  sustained  upon  a  wager ;  and  the  other,  that 
in  this  particular  case  an  action  could  not  be  supported.  A 
majority  of  the  court,  therefore,  gave  judgment  for  the  defendant, 
and  the  plaintiff  sued  out  a  writ  of  error. 

J.  Randall,  for  the  plaintiff  in  error,  contended  that  in  Penn- 
sylvania an  action  upon  a  wager  can  be  sustained,  except  in 
cases  in  which  the  wager  is  specially  prohibited  by  act  of  as- 
sembly, or  void  at  common  law.  The  case  before  the  court,  he 
said,  depended  on  authority,  and  afforded  an  opportunity  to  test 
the  value  of  the  principle  of  stare  decisis.  The  subject  has 
been  frequently  before  the  legislature,  which,  though  it  has 
thought  proper  to  forbid  wagers  of  certain  descriptions,  has  left 
wagers  at  common  law  untouched.  It  is  not  the  province  of 
this  court,  by  judicial  legislation,  to  do  that  which  belongs  to 
r*o7-]  another  branch  of  the  government.  *Steele  v.  Phoenix 
L  "^'-1  Ins.  Co.,  3  Binn.  313 ;  Weidel  v.  Roseberry,  13  Serg.  & 
Rawle,  180,  181.  A  wager,  the  subject-matter  of  which  is  fair, 
is  so  far  from  being  discountenanced  by  courts  of  justice,  that 
it  is  fictitiously  adopted  as  a  form  of  deciding  the  most  impor- 
tant questions.  The  very  substratum  of  a  feigned  issue  is  a  sup- 
posed wager.  Actions  upon  Avagers  claim  a  high  antiquity  ;  for, 
in  the  earliest  books  of  entries,  will  be  found  the  forms  of  de- 
claring upon  them.  Nor  is  the  dignity  of  courts  at  all  affected 
by  being  called  upon  to  decide  such  controversies.  An  argu- 
ment like  this  is  so  complimentary  to  those  to  whom  it  is  ad- 
dressed as  to  be  received  with  some  complacency ;  but,  in  the 
present  instance,  it  has  no  support.  It  would  interfere  with  the 
decision  of  many  cases,  in  which,  at  first,  it  might  not  be  sup- 
posed toapply.  What  is  a  voyage  to  a  foreign  port  but  a  wager 
upon  the  state  of  the  market?  Indeed,  all  the  speculative 
transactions  of  life  are,  substantially,  wagers.  The  whole  sub- 
ject of  the  impolicy  of  wagers  was  before  the  legislature,  when, 
after  the  decision  of  Morgan  v.  Richards,  1  Browne's  Rep.  171, 
and  Smith  v.  M'Master,  2  Browne's  Rep.  182,  in  which  their 
validity  was  recognized,  they  jjassed  laws  to  prohibit  Ixjtting  on 
elections,  horse  races,  and  other  species  of  gaming,  and  left  the 
general  doctrine  on  the  subject  as  it  stopd  before.  The  ques- 
tion then  arises,  is  a  wager  good  at  common  law  ?  No  principle 
is  better  established  by  authority  than  that  they  are  so  when 
they  do  not  interfere  with  good  morals,  or  with  the  provisions  or 
policy  of  the  law.  The  lawfulness  of  wagers  was  recognized  as 
40 


Dec.  29,  1828.]      OF   PENNSYLVANIA.  37 

[Phillips  V.  Ives.] 

long  ago  as  44th  Elizabeth.     In  Walcot  v.  Tappin,  1  Keb.  56, 
65 ;  s.  c,  1  Lev.  33,  the  action  was  upon  a  promise  that,  in 
consideration  of   twenty  shillings,  the   defendant  would   give 
twenty  pounds  if  Charles  Stuart  should  be  King  of  England 
within  a  twelvemonth.    The  King  was  in  exile  when  the  bet  was 
made,  which  was  about  six  months  before  his  restoration.     The 
defence  was  put  solely  on  the  ground  of  want  of  consideration, 
because  the  subject  of  it  was,  in  contemplation  of  law.  King  of 
England  at  the  time  of  the  contract.     No  objection  was  taken, 
either  to  the  legality  of  wagers  generally  or  to  the  particular 
one  in  question ;  and,  notwithstanding  it  was  upon  a  political 
subject  of  deep  interest  to  the  nation,  the  plaintiff  had  judg- 
ment.   The  same  objection,  want  of  consideration,  and  no  other, 
was  taken  in  the  case  of  The  Earl  of  March  v.  Pigot,  5  Burr. 
2802,  in  which  the  plaintiff  and  defendant  agreed,  at  New- 
market, after  dinner,  to  run  the  life  of  Sir  William  Codrington 
against  that  of  Mr.  Pigot's  father.      The  latter  died  at  two 
o'clock  in  the  morning  of  the  very  day  on  which  the  bet  was 
made ;  but  this  fact  was  not  known  to  the  parties,  and  the  de- 
fence was,  that  as  the  defendant  could   not  possibly  win,  he 
ought  not  to  lose.     The  plaintiff  had  a  verdict ;  and  a  rule  to 
show  cause  why  there  should  not  be  a  new  trial  having  been 
granted,  it  was,  after  argument,  discharged  by  the  unanimous 
opinion  of  the  court.     A  wager,  whether  a  decree  of  the  Court 
of  Chancery  would  *be  reversed  or  not,  on  appeal  to  the    r^^on-i 
House  of  Lords,  it  was  determined  in  Jones  v.  Randall,    '-       -^ 
Cowp.  37,  might  be  recovered,  unless  the  motive  be  fraud,  or 
other  turpis  causa.    In  Harrison's  Digest,  Title  Gaming,  Subdi- 
vision Wagers,  the  cases  are  brought  together,  and  it  will  be  found 
that  though  the  judges  have  sometimes  expressed  doubts  as  to  its 
propriety,  yet  the  validity  of  wagers,  in  general,  is  uniformly 
treated,  established  legal  doctrine.     In  New  York,  it  has  been 
fully  considered  and  recognized.     Bunn  v.  Piker,  4  Johns.  436  ; 
Campbell  v.  Richardson,  10  Johns.  406.    The  validity  of  wagers, 
unless  they  be  illegal,  immoral,  or  indecent,  has  been  fully  ad- 
mitted, too,  in  Pennsylvania,  by  a  judge,  whose   strict  moral 
sense  would  have  led  him  to  a  different  result,  if  he  had  not  con- 
sidered the  law  too  well  settled  to  be  called  in  question.     Mor- 
gan V.  Richards,  1   Browne's  Rep.  171  ;  Smith  v.  M'Masters, 
2  Browne's  Rep.  182.     The  subject-matter  of  the  present  wager, 
between    tAvo    American    citizens,  was    perfectly  harmless.     It 
offended  against  neither  law  nor  morals.     It  was  a  mere  matter 
of  speculation,  interesting,  it  is  true,  throughout  the  civilized 
world,  from  the  character  of  the  extraordinary  person  to  whom 
it  related,  but,  in  a  national  point  of  view,  wholly  immaterial. 
It  could  affect  neither  the  life  nor  the  security  of  the  great  state 

41 


38  SUPREME  COURT  [PhUadeljphia, 

[Phillips  V.  Ives.] 

prisoner,  had  he  been  alive.  Both  were  effectually  protected  by 
the  great  precautions  taken  by  the  British  government.  But,  in 
fact,  when  the  bet  was  made,  he  was  actually  dead,  a  fact  well 
known  as  a  matter  of  history. 

P.  A.  Broume,  for  the  defendant  in  error. — This  case  presents 
a  peculiarly  fit  occasion  for  this  court  to  determine,  whether  con- 
tracts, which  every  one  admits  to  be  immoral  in  tiieir  nature, 
and  pernicious  in  their  consequences,  are  good  in  law.  It  can- 
not, it  is  true,  be  maintained,  that  no  wager,  of  any  description, 
is  valid,  but,  it  may  be  contended — 

1.  That,  by  the  common  law  of  Pennsylvania,  no  wager  is  re- 
coverable in  which  the  parties  have  no  other  interest  in  the  sub- 
ject-matter, than  that  which  they  themselves  create  by  the  wager. 
This  position  is  an  answer  to  the  argument  derived  from  the 
adoption  of  a  fictitious  wager,  in  feigned  issues,  in  which  there 
is  always  a  stipulation,  that  the  wager  itself  shall  not  be  recov- 
ered. Even  the  use  of  such  a  form  has  been  regretted  by  a 
learned  judge  of  this  court.  Brack.  Law  Misc.  211.  Among 
other  sources  of  the  common  law  of  Pennsylvania,  we  are  to 
look  to  the  decisions  of  the  courts  of  England  prior  to  the  revo- 
lution, and  it  may  be  safely  aifirmed,  that  there  is  no  English 
case,  prior  to  the  4th  of  July^  1776,  in  which  it  has  been  de- 
cided, upon  the  point  being  made,  that  a  wager  upon  an  indif- 
ferent subject  might  be  recovered.  This  court  is,  therefore,  en- 
tirely unfettered  by  transatlantic  authority ;  the  decisions  sub- 
sequent to  the  revolution  not  being  binding.  The  earliest  case 
is  that  of  The  Monopolies,  11  Coke,  84,  in  44th  Elizabeth,  cited 
on  the  other  side ;  in  which  the  question  was,  whether  the 
r*qQl  Queen's  grant  of  a  *monopoly  for  the  making  and  impor- 
L  -•  tation  of  playing  cards,  was  void ;  and  the  only  part  of 
the  case  which  has  any  bearing  upon  the  present  question,  is 
that  in  which  it  is  said,  that  playing  cards  and  dice  is  not  pro- 
hibited by  the  common  law.  In  the  case  reported  under  different 
names,  in  1  Keb.  56,  65,  and  1  Lev.  3,  upon  the  wager,  whether 
Charles  Stuart  would  be  king  within  a  certain  period,  no  point 
was  made,  whether  a  mere  idle  wager  was  good,  which  was  taken 
for  granted.  It  was  not  noticed  either  by  the  counsel  or  the 
court.  It  is,  at  most,  therefore,  a  mere  negative  precedent,  and 
no  decision.  In  Danvers  v.  Thistlethwait,  Sid.  394,  and  St. 
Leger  v.  Pope,  4  Mod.  406,  409  ;  5  Mod.  1,  4,  the  question  was, 
whether  the  particular  bet  was  Muthin  the  statute  against  gaming. 
Neither  in  this,  nor  in  any  of  the  other  cases  decided  before  the 
American  Revolution,  was  the  general  question  ever  raised. 
Since  the  revolution,  the  broad  question,  it  is  true,  has  been  de- 
cided ;  never,  however,  without  expressions  of  regret,  that  the 
42 


i^ec.  29, 1828.]       OF   PENNSYLVANIA.  39 

[Phillips  V.  Ives.] 

law  was,  as  it  was  believed  to  be,  and  in  opposition,  too,  to  the 
opinions  of  many  distinguished  judges.  This  coujI  then,  not 
being  bound  down  by  authority,  are  at  liberty  to  recur  to  first 
principles,  as  the  foundation  of  their  decision.  In  the  two  cases 
cited  from  1  and  2  Browne's  Rej).,  the  point  was  not  made.  If 
it  had  been,  from  the  character  of  the  presiding  judge,  it  cannot  be 
doubted,  that  his  decision  would  have  been  against  the  legality 
of  an  idle  bet.  The  decisions  in  New  York  cannot  inform  us  as 
to  the  common  law  of  Pennsylvania,  which  consists  of  what  our 
fathers  brought  with  them  from  England,  and  of  what  has  been 
since  established,  as  applicable  to  the  condition  of  a  moral  and 
religious  people.  In  a  republican  government  })articularly,  whose 
very  foundation  is  purity  of  morals,  it  is  against  principle  and 
against  morality,  to  give  a  legal  sanctity  to  gaming.  I^  England, 
where  the  policy  is  to  preserve  great  hereditary  wealth  in  particu- 
lar families,  the  objection  to  it  is  not  so  strong  as  in  a  country,  the 
policy  of  which  is  to  keep  the  people  as  nearly  on  a  level  with 
each  other  as  possible,  and  to  promote  habits  of  industry,  which 
are  invaded  by  nothing  so  much  as  the  spirit  of  gaming.  We 
are  not  without  example  in  this  matter.  The  act  of  Parliament 
against  wagering  policies  does  not  extend  to  this  country ;  yet 
it  has  been  expressly  decided  that  such  policies  are  void  in  Penn- 
sylvania, because  they  are  against  principle.  Pritchet  v.  Ins. 
Co.  of  North  America,  3  Yeates,  458.  This  court  upon  prin- 
ciple, and  without  authority  to  guide  them,  decided  in  The  Com- 
monwealth V.  Sharpless,  2  Serg.  &  Pawle,  91,  that  the  ])rivate 
exhibition  of  an  indecent  picture,  was  an  indictable  offence. 
The  broad  principle,  that  good  morals  were  part  of  the  law  of 
the  land,  was  the  only  foundation  of  the  decision ;  and  surely 
gaming  is  more  pernicious  in  its  effects  upon  society,  than  the 
exhibition  of  a  picture,  however  indecent. 

Besides,  the  English  decisions  referred  to,  are  merely  deci- 
sions of  courts  of  law ;  for  equity  not  only  uniformly  refuses  to 
lend  its  *aid  to  carry  into  effect  a  gaming  contract,  but  r:(:^rv-| 
sometimes  even  gives  its  assistance  to  recover  back  money  L  -^ 
won  at  play.  Sir  Basil  Firbrace  v.  Brett,  2  Vern.  70  ;  1  Fonb. 
336 ;  2  Vern.  291 ;  14  Vin.  Ab.  Gaming,  D.  We  have  the 
full  benefit  of  these  authorities,  because  equity  is  part  of  the  law 
of  Pennsylvania. 

2.  The  present  wager  is  prohibited  by  the  statute  law  of  Penn- 
sylvania. The  language  of  the  act  of  the  27th  of  April,  1794, 
sect.  8,  Purd.  Dig.  318,  prohibits  this  species  of  gaming.  It 
comes  within  the  words,  "  any  play  whatsoever."  If  authority 
were  wanting  to  show  that  betting  is  gaming,  we  have  it.  Har- 
rison, in  his  Digest,  cited  on  the  opposite  side  classes  betting 
under  the  head  of  gaming. 

43 


40  SUPREME  COURT  {PhUadelphia, 

[Phillips  V.  Ives.] 

3.  The  wager  is  void,  because  it  interferes  with  the  feelings 
and  interests  of  a  third  person.  Cowp.  37.  It  made  it  the  inter- 
est of  one  of  the  parties  that  Napoleon  should  die  within  a 
limited  time.  The  smallness  of  the  l^et,  the  character  of  the 
individual  to  whom  it  referred,  and  the  improbability  that  any- 
one would  go  to  St.  Helena  to  destroy  him,  are  not  material. 
The  principle  is  available,  no  matter  how  remote  the  probability 
of  the  event  to  which  it  refers.  A  plausible  ground  is  always 
sufficient  to  induce  the  court  to  refuse  to  carry  into  effect  an 
immoral  contract. 

4.  Napoleon  was  a  state  pxisoner,  and  no  matter  how  unjust 
his  detention  might  have  been,  the  policy  and  the  duty  of  our  gov- 
ernment forbade  an  interference  on  its  part,  or  a  permission  to 
its  citizens  to  interfere  with  its  concerns.  The  agreement  be- 
tween the  parties  to  this  suit,  was  an  encouragement  to  do  an 
act,  which  might  involve  the  United  States  in  a  war  with  the 
powers  of  Europe.  It  is  no  argument  to  urge  the  insufficiency 
of  the  motive,  the  improbability  of  the  attempt,  or  the  difficulty 
of  its  execution.  If  such  au  attempt  had  been  barely  possible, 
that  would  have  been  enough.  But  it  is  well  known,  that  many 
schemes,  some  of  them  deeply  laid,  and  well  arranged,  were 
formed  to  carry  off  Napoleon  from  his  prison,  which  were  not 
carried  into  effect,  merely  because  they  had  not  his  sanction. 

5.  The  court  below  had  not  the  jurisdiction  of  the  case.  The 
wager  was  one  hundred  dollars,  and  the  declaration  demands 
that  sum.  The  District  Court  has  jurisdiction  only  where  the 
sum  in  controversy  exceeds  one  hundred  dollars.  If  the  prin- 
cipal sum  is  below  the  jurisdiction  of  the  court,  interest  accruing 
since  the  commencement  of  the  suit,  cannot  extend  the  jurisdiction. 

In  reply,  it  was  observed,  that  the  argument  of  the  defendant 
in  error,  was  exclusively  founded  on  an  allegation  of  his  own 
turpitude,  and,  therefore,  it  ought  not  to  avail  him.  The  doc- 
trine contended  for,  would  tend  to  deprive  every  underwriter  of 
his  premium,  as  that  is  the  only  interest  he  has  in  the  policy, 
which  is,  in  effect,  a  wager.  There  is  no  decision  or  even  dio- 
tum  to  support  the  position,  that  a  wager  on  an  indifferent  sub- 
ject cannot  be  recovered.  The  only  reason  why  the  point  has 
p^ .  ^  -,  not  been  *made  is,  that  no  doubt  was  entertained  on  the 
L  -^  subject.  The  argument  as  to  the  demoralizing  effects  of 
betting,  is  fanciful.  Lotteries,  which  are  authorized  by  law,  are 
much  more  destructive  of  morals,  and  the  peace  of  families.  The 
act  of  1794,  relates  entirely  to  games  of  address  and  not  to 
wagers.  As  to  the  case  cited  from  3  Yeates,  458,  on  the  sub- 
ject of  wager  policies,  it  may  be  said,  that  it  is  by  no  means 
settled  law  in  Pennsylvania,  that  such  policies  are  illegal.  The 
44 


jDec.  29, 1828.]x    OF   PENNSYLVANIA.  41 

[Phillips  V.  Ives.] 

present  wager  could  not  interfere  with  the  feelings  of  Napoleon, 
who  was  too  remote,  in  every  sense  of  the  word,  to  be  aftected 
by  it.  If  the  bet  leads  to  an  inquiry  into  the  sex  or  affairs  of 
an  individual,  it  is  unlawful,  but  not  otherwise.  Its  being  a 
wager  on  the  life  of  Napoleon,  does  not  affect  its  validity.  That 
was  the  character  of  the  bet  in  JSIarch  v.  Pigot,  which  was  held 
to  be  recoverable. 

The  District  Court  had  jurisdiction.  There  were  two  counts, 
each  upon  distinct  wagers  of  one  hundred  dollars.  The  damages 
were  laid  at  one  hundred  and  fifty  dollars,  and  the  verdict  was 
for  one  hundred  and  twenty  dollars,  the  judge  having  instructed 
the  jury  that  the  plaintiff  was  entitled  to  interest  from  the  time 
of  demand. 

The  opinion  of  the  court  was  delivered  by 
HusTOX,  J. — This  was  an  action  brought  on  a  wager,  evi- 
denced by  a  writing  in  the  words  following : 

"May  the  14th,  1821.  This  day  Stephen  Ives  bet  one  hun- 
dred dollars  to  fifty  dollars,  with  John  Phillips,  that  Napoleon 
Bonaparte  will,  at  or  before  the  expiration  of  two  years  from 
the  above  date,  be  removed  or  escape  from  the  island  of  St. 
Helena.  It  is  understood  between  the  parties,  that  if  Bonaparte 
should  die  within  the  above  period  of  two  years,  and  on  the 
island  of  St.  Helena,  that  Mr.  Ives  loses  the  bet." 

(Signed  by  the  parties.) 

Bonaparte  did  die  on  the  island  of  St.  Helena,  within  the  two 
years,  or  was  dedd  at  that  time.  The  District  Court,  on  a  ver- 
dict being  taken  for  Phillips,  subject  to  the  opinion  of  the  court, 
gave  judgment  for  the  defendant.  The  case  has  been  well  argued, 
and  deserves  serious  consideration,  not  from  the  amount  in  dis- 
pute, but  from  the  principle  involved. 

Certainly  a  wager  can  generally  be  recovered  in  England,  un- 
less where  betting  on  the  particular  subject,  is  prohibited  by  act 
of  Parliament.  When  we  reflect  that  no  good  can  result  to  the 
community  from  the  practice  of  betting,  that  much  loss  and 
domestic  distress  is  occasioned  by  it,  no  wonder  that  in  that 
country  judges  have  regretted  that  it  had  been  ever  decided  that 
a  bet  could  be  recovered.  When  our  ancestors  separated  this 
country  from  England,  it  was,  on  the  28th  of  January,  1777, 
enacted,  that  the  common  law  and  such  of  the  statute  laws  of 
England  as  have  been  in  *force  in  this  province,  shall  be  r^^oi 
in  force  and  binding,  until  altered,  &c.  Now,  I  have  •-  ^ 
always  believed,  that  the  restrictive  words  "  as  have  heretofore 
been"  are  as  applicable  to  the  common  law  as  to  the  statute 

45 


42  SUPREME   COURT  IPhUadelphm, 

[Phillips  V.  lyes.] 

law.  Much  of  both  never  was,  and  is  not  law  here.  And  I 
would  imitate  those  judges  who  decided,  that  gaming  policies  of 
insurance,  though  good  at  common  law,  were  void  here,  as  not 
suitable  to  the  principles  or  genius  of  our  institutions.  In  fact, 
this  is  a  gaming  policy ;  but,  as  I  view  this  case,  there  is  another 
principle  on  which  the  judgment  of  the  court  is  right,  admitting 
that  some  wagers  can  be  recovered ;  but  in  this,  I  do  not  give 
the  opinion  of  the  court,  who  think  the  legislature  only  can 
prohibit  a  recovery  in  all  cases  of  wagers. 

No  man  or  men  have  any  right  to  occasion  trouble  or  uneasi- 
ness to  any  other  man  or  woman,  and  no  court  ought  to  assist 
them  in  so  doing,  or  permit  its  jurisdiction  to  be  abused  for  such 
purpose.  It  has  been  decided,  that  certain  wagers,  for  examj)le, 
whether  a  particular  person  was  a  man  or  woman,  were  not  re- 
coverable in  a  court  of  justice,  because  the  proof  might  be  inde- 
cent, and  the  investigation  distressing  to  the  persons.  Although 
the  testimony  may  not,  in  all  cases,  lead  to  inquiries,  or  call  for 
proof,  which  is  indecent ;  and  although  the  investigation  may  in 
some  possible  cases,  not  occasion  distress  to  the  person  who  is 
the  subject  of  the  bet,  yet  the  very  same  bet,  and  the  evidence 
to  be  adduced,  may  be  very  distressing  to  another  person  about 
whom  the  second  bet  may  be  made.  A  man  of  undoubted 
wealth,  not  in  debt,  and  not  surety  for  any  person,  may  feel 
perfectly  indiiferent  as  to  an  investigation  in  a  court  of  justice, 
as  to  the  precise  amount  of  that  wealth ;  but  a  man  in  other  cir- 
cumstances, may  be  much  distressed  and  seriously  injured.  I 
may  be  perfectly  indiiferent  as  to  a  bet  on  my  age,  but  there 
are  no  doubt  many  persons  about  whose  age  it  would  be  imper- 
tinent to  bet,  and  who  would  be  much  hurt  by  the  investigation. 
Ordinarily,  a  man  in  prison  for  any  cause  is  enough  distressed ; 
shall  it  be  permitted  that  the  question  of  when  he  will  be  liber- 
ated, shall  be  the  subject  of  wagers  among  idle,  or  thoughtless, 
or  malicious  persons,  and  shall  the  courts  of  justice  of  the  coun- 
try add  to  that  distress  by  listening  to  and  collecting  others  to 
listen  to  all  that  malice  or  avarice  may  be  able  to  collect  on  the 
subject  ?  I  would  consider  it  as  a  case  calling  for  a  general  rule, 
and  say,  that,  as  every  bet  about  the  age,  or  height,  or  weight, 
or  wealth,  or  circumstances,  or  situation  of  any  person,  is  either 
malicious  or  indecent,  or  impertinent,  or  indelicate,  such  bets  are 
illegal,  and  that  no  court  ought  in  any  case,  to  sustain  a  suit  on 
such  wager ;  and  this,  whether  the  subject  of  the  bet  was  man, 
or  woman,  or  child,*  married  or  single,  native  or  foreigner,  in 
this  country  or  abroad. 

I  can  perceive  no  principle  of  law  or  justice,  which  will  re- 
quire or  permit  the  time  of  the  country  and  its  courts  to  be 
wasted  to  gratify  the  malice,  or  the  curiosity,  or  the  caprice  of 
46 


Dee.  29,  1828.]        OF   PENNSYLVANIA.  42 

[Phillips  V.  Ives.] 
the  unthinking  and  impertinent.  There  are  many  things  which 
politeness  *woulcl  nut  mention,  and  charity  would  con-  rt.-y^-^ 
ceal ;  I  would  not  assist  folly  or  malignity  in  making  L  '  J 
them  public.  I  would  not  as  a  man,  and  I  will  not  as  a  judge 
— I  hold  that  no  bet  of  any  kind,  about  any  human  b^ing,  is  re- 
coverable in  a  court  of  justice. 

Gibson,  C.  J.,  delivered  the  following  opinion,  in  which 
Smith,  J.,  concurred. 

I  regret  that  my  opinion  is  so  fixed  as  to  compel  me  to  dissent. 
It  seems  to  me,  that  the  policy  of  the  law,  as  already  settled,  is 
not  a  subject  for  our  consideration.  Nothing  like  argument  or 
reason  has  been  adduced  at  the  bar  to  show  that  the  adjudica- 
tions of  the  English  courts  prior  to  the  American  revolution, 
are  not,  as  regards  the  point  in  controversy,  binding  authority 
and  conclusive  on  the  judgment  of  this  court.  If  they  be  dis- 
regarded in  this  instance,  I  see  nothing  to  prevent  us  from  up- 
rooting the  very  foundations  of  the  common  law.  It  has  not 
been  pretended  that  this  wager  would  be  invalid  on  any  princi- 
ple of  those  decisions.  The  instance  most  apposite,  is  the  wager 
respecting  the  restoration  of  the  King ;  in  which  the  incitement, 
if  any  were  supposed,  directly  tended  to  implicate  at  least  one 
of  the  parties  in  the  guilt  of  treason,  and  to  involve  the  country 
in  a  civil  war.  In  the  case  at  bar,  the  mischievous  consequences 
supposed  to  have  been  producible  were,  an  enterprise  against 
the  island  of  St.  Helena ;  the  rescue  of  Napoleon ;  the  selection 
by  him  of  the  United  States  as  a  place  of  refuge ;  the  demand 
of  his  person  by  the  European  powers  ;  the  refusal  of  the  Ameri- 
can government ;  and,  as  a  consequence  of  the  whole — war. 
Surely  we  ought  to  look  at  these  matters  with  a  practical  eye 
to  their  probable  results,  instead  of  encouraging  a  train  of  idle 
fancies,  by  the  aid  of  which  there  is  no  circumstance  or  contin- 
gency that  may  not  be  made  pregnant  with  danger,  and  unlaw- 
ful as  the  subject  of  a  wager.  The  catastrophe  required  the 
concurrence  of  so  many  accidents,  as  to  set  tiie  accomplishment 
of  it,  at  defiance.  The  most  desperate  speculator  among  us 
would  not  have  dared  to  attempt  what  was  l^eyond  the  combined 
means  of  the  continental  powers ;  nor  would  it  have  produced 
any  consequences  to  the  nation  if  he  had ;  such  an  attempt 
being  perfectly  lawful,  and  producing  no  responsibility  on  the 
part  of  the  government.  But  it  is  said,  no  wager  is  lawful  which 
creates  an  interest  in  the  death  of  another.  The  preceding 
remarks  are  equally  applicable  to  this  part  of  the  case ;  for  it  is 
notorious,  that  it  was  just  as  difficult  to  take  away  the  life  of 
Napoleon,  as  to  set  him  at  liberty.  The  law  does  not  presume 
that  any  one  would  jeopard  his  own  life  for  the  insi<2:nificant 

47 


43  SUPRE^IE   COURT  [Philadelphia, 

[Phillips  V.  Ives.] 

consideration  of  winning  a  bet.  Of  tliis,  the  case  in  which  the 
parties  agree  to  run  their  fathers  against  each  other,  as  it  was 
termed,  is  a  signal  instance.  That  case  is  also  an  autliority  in 
point  against  another  position  assumed  in  the  argument,  that  no 
one  is  i>ermitted  to  gain  an  interest  in  the  concerns  of  another, 
by  his  own  act.  It  is  undoubtedly  true,  that  a  wager  which 
r*441  prejudices  the  interest  *or  outrages  the  feelings  of  a 
L  J  third  person,  is  illegal ;  and  were  there  colour  to  suppose 
that  the  wager  in  the  case  at  bar,  would  have  thus  operated  on 
the  interest  or  feelings  of  Napoleon,  I  would  agree  that  it  ought 
not  to  be  sustained.  But  although  dethroned  and  a  captive,  he 
was  at  an  immeasurable  distance  from  the  parties,  and  beyond 
their  influence  or  power.  It  seems  to  me  that  questions  of  this 
sort,  are  to  be  considered  in  reference  to  the  circumstances  and 
condition  of  the  individual.  The  interest  and  feelings  of  every 
inhabitant  of  Russia  and  Turkey  are  doubtless  wound  up  in  the 
present  contest  between  those  two  countries ;  and  the  dismem- 
berment of  the  latter,  would  be  a  consequence  quite  as  likely  to 
be  produced  by  the  success  of  the  former,  as  the  catastrophe 
anticipated  from  the  escape  of  Napoleon  :  yet  tenderness  for  the 
feelings  of  the  Sultan,  would  scarcely  be  thought  to  require  the 
people  of  the  United  States  to  forego  ,all  speculations  as  to  the 
event.  To  come  nearer  home.  Betting  on  the  success  of  par- 
ticular candidates  at  an  election,  was  thought  to  require  a  statute 
to  make  it  unlawful.  A  wager  which  would  necessarily  or  even 
probably  disturb  the  peace  of  an  individual,  is  not  to  be  en- 
couraged ;  but  it  has  not,  I  believe,  been  understood,  that  a  mor- 
bid and  overstrained  sensibility,  which,  in  ordinary  cases,  does 
not  exist,  is  the  subject  of  special  protection.  It  seems  to  me 
this  wager  tended  neither  to  indecent  evidence,  nor  to  disturb 
the  peace  of  the  public,  or  of  an  individual ;  and  that  it  was  not, 
in  its  design  or  consequences,  contrary  to  good  manners  or  sound 
policy.     I  am  therefore  of  opinion  that  the  action  be  sustained. 

Judgment  affirmed. 

ated  by  Counsel,  1  G.  70. 

Commented  on  and  approved  in  6  Wh.  179 ;  13  W.  N.  C.  491. 

In  Edgell  v.  McLaughlin,  6  Wh.  176,  the  court  approved  and  extended  this 
doctrine,  and  declared  that  no  wager  is  recoverable  in  Pennsylvania.  The 
point  has  since  arisen  on  election  bets,  and  the  same  rule  has  been  applied : 
Lloyd  V.  Leisenring,  7  W.  294 ;  even  where  the  bet  was  made  after  the  polls 
closed :  Directors  of  the  Poor  v.  Phipps,  1  Chest.  Co.  E.  25, 

The  same  rule  had  been  previously  applied  to  contracts  of  insurance  where 
the  beneficiary  had  no  interest  in  the  life  of  the  insured :  Pritchett  v.  Ins.  Co., 
3  Y.  458.  And  although  a  dictum  in  Ins.  Co.  v.  Robertshaw,  2  C.  1 89,  was  to 
the  effect  that  such  an  one  might  come  into  possession  of  a  policy  by  a.ssign- 
ment,  a  later  case  extends  the  old  rule  to  such  a  state  of  facts,  and  allows  no  one 
without  an  interest  in  the  life  to  have  an  interest  in  the  policy :  Gilbert  v. 
Moose,  13  W.  N.  C.  488. 
48 


Dec.  29, 1828.]       OF   PENNSYLVANIA.  44 

[PHUiADELPHIA,  DECEMBER  29,  1828.] 

Barnet  against  Ihrie. 

IN   ERROR. 

A  writ  of  habere  facias  seisinam,  is  not  the  proper  form  of  execution  in  an 
assize  of  nuisance. 

//  see»i.s,  that  a  distringas  to  compel  the  defendant,  himself,  to  abate  the 
nuisance,  is  the  proper  writ. 

An  execution,  for  costs  not  allowed  by  law,  may  be  reversed  on  a  writ  of 
error. 

What  costs  are  allowable,  and  what  are  not,  in  an  assize  of  nuisance. 

A  VERDICT  of  the  recognitors  in  this  assize  of  nuisance,  having 
been  rendered  in  favour  of  the  plaintiff  below,  the  defendant  in 
error — "  Judgment  nm,"  was  entered  thereon,  on  the  28th  of 
January,  1826,  and  at  half  past  twelve  o'clock,  in  the  morning 
of  the  30th  of  the  same  month,  the  plaintiff  issued  a  writ  of  exe- 
cution in  *the  following  form,  which  was  placed  in  the  r**--] 
sheriff's  hands  at  four  o'clock  of  the  same  mornmg :  *-       ^ 

"  Northampton  county,  ss. 

"The  Commonwealth  of  Pennsylvania,  to  the  Sheriff  of  Nortli- 
amj)ton  County,  greeting.  Whereas,  Peter  Ihrie,  the  elder, 
lately  in  our  County  Court  of  Common  Pleas,  for  the  County 
of  Northampton,  before  our  judges  thereof  at  Easton,  instituted 
a  writ  of  assize  of  nuisance  against  William  Barnet,  the  elder, 
late  of  your  county,  for,  that  he,  the  said  AVilliam  Barnet,  the 
elder,  unjustly  and  without  judgment,  had  erected,  levied,  and 
raised  a  certain  wall  and  dam,  thereby  obstructing  a  certain 
mill  site,  and  a  certain  water  course,  called  the  Bushkill  ci"eek, 
to  the  nuisance  of  the  freehold  of  the  said  Peter  Ihrie,  the  elder, 
situate  in  the  Borough  of  Easton  and  county  aforesaid,  within 
thirty  years,  then  last  past,  and  it  hath  been  found  in  our  said 
court,  by  the  view  of  the  recognitors  of  the  assize  aforesaid, 
that  the  said  Peter  Ihrie,  the  elder,  on  the  first  day  of  January, 
in  the  year  of  our  Ivord  one  thousand  eight  hundred  and  twenty- 
six,  was,  and  still  is  seised  in  his  demesne  as  of  fee,  of,  and  in 
a  certain  water  mill  site,  and  two  acres  and  fifty-nine  perches 
of  land,  situate  in  the  Borough  of  Easton  and  county  aforesaid, 
together  with  a  certain  water  course  and  stream  of  water,  called 
the  Bushkill  creek,  running  through  and  along  the  said  land 
from  the  said  mill  site,  so  that  at  the  said  mill  site  upon  the 
said  land,  before  the  levying  of  the  said  wall  and  dam,  there 
could  be  had  and  was  a  fall  of  six  feet  four  inches  of  and  upon 
the  said  water  course  and  stream  of  water,  to  be  applied  to  the 
driving  of  a  water  wheel  for  propelling  mill  works  and  machinery, 
and  the  said  Peter  Ihrie,  the  elder,  being  so  thereof  seised,  the 
said  William  Barnet,  the  elder,  on  the  day  and  year  aforesaid, 

VOL.  I.-  4  49 


45  SUPREME  COURT  [Philadelphia, 

[Bamet  r.  Ihrie.] 

at  the  county  and  borough  aforesaid,  unjustly  and  without  judg- 
ment, levied  and  raised  a  certain  wall  and  dam,  thereby  ob- 
structing the  said  mill  site  and  water  course,  and  the  said  stream 
of  water  running  therefrom  through  and  along  the  said  land,  by 
reason  whereof  the  said  land  is  overflowed,  and  the  said  mill  site 
is  injured ;  and  the  fall  thereof,  and  of  the  said  water  course  is 
reduced  to  four  feet,  and  the  power  thereof  diminished,  so  that 
the  same  could,  not  and  cannot  be  applied  as  it  otherwise  could 
and  w'ould  have  been,  and  still  would  be  applied  to  the  driving 
of  a  water  wheel  for  propelling  mill  works  and  machinery. 
Wherefore,  it  was  considered  and  adjudged  by  our  said  court, 
that  the  aforesaid  wall  and  dam  be  removed,  and  abatal  so  as  to 
remove  the  swelling  thereby  occasioned  at  and  upon  the  lands 
of  the  said  Peter  Ihrie,  the  elder,  and  reduce  and  restore  the 
water  in  the  said  Bushkill  creek,  to  its  natural  current  and 
channel,  and  the  said  Peter  Ihrie,  the  elder,  should  recover  of 
and  from  the  said  William  Barnet,  the  elder,  as  well  the  sum  of 
two  hundred  dollars,  lawful  money  of  the  United  States,  for  his 
damages  which  he  has  sustained  by  occasion  of  the  obstruction 
and  nuisance  aforesaid,  as  also  one  hundred  and  ninety-eight 
r*4fi1  dollars  and  sixty-eight  *and  a-quarter  cents,  which,  to  the 
L  -•  said  Peter  Ihrie,  the  elder,  in  our  said  court  were  adjudged 
for  his  costs  and  charges  by  him  about  his  said  suit  in  that  behalf 
expended,  whereof  the  said  William  Barnet,  the  elder,  is  convict, 
as  by  the  record  and  proceedings  thereof,  remaining  in  our  said 
court  more  fully  is  manifest  and  appears.  Therefore  we  com- 
mand you,  that  justly  and  without  delay,  you  cause  the  said 
wall  and  dam  to  be  removed  and  abated  so  as  to  remove  the 
swelling  thereby  occasioned  at  and  upon  the  land  of  the  said 
Peter  Ihrie,  the  elder,  and  reduce  and  restore  the  water  in  the 
said  Bushkill  creek  to  its  natural  current  and  channel.  And 
that  of  the  goods  and  chattels,  lands  and  tenements,  of  the  said 
William  Barnet,  the  elder,  within  your  bailiwick,  you  cause  to  be 
levied  the  said  sums  of  money,  amounting  to  three  hundred  and 
ninety-eight  dollars  and  sixty-eight  and  a-quarter  cents,  so,  as 
aforesaid,  to  the  said  Peter  Ihrie,  the  elder,  adjudged  for  his 
damages,  costs,  and  charges  aforesaid.  And  have  you  those 
moneys  before  our  judges  at  Easton,  at  our  county  Court  of 
Common  Pleas,  there  to  be  held  for  the  county  aforesaid,  the 
third  Monday  of  April  next,  to  render  to  the  said  Peter  Ihrie, 
the  elder,  for  his  damages,  costs,  and  charges  aforesaid.  And 
how  you  shall  further  execute  this,  our  writ,  make  manifest  to 
our  said  judges,  at  the  day  and  place  aforesaid ;  and  have  you 
then  there  this  writ.     Witness,  &c." 

On  the  writ  were  these  endorsements,  viz. 

Of  April  term,  1826. 
50 


Dec.  29, 1828.]       OF  PENNSYLVANIA.  46 

[Barnet  v.  Ihrie.] 

Peter  Ihrie,  the  elder,     ^ 

V.  y  Hah.fac.  seis.  cum.Ji.fa. 

William  Barnet,  the  elder,  j 

$  cts. 

Real  damages, 200 

Interest  from  January  28, 1826,     .    .    . 

Prothonotary, 7  39 

Recognitors, 137  00 

Sheriff,      21  62^ 

Plaintiff's  bill, 32  16^ 

Fieri  facias, 50 

198  67J 

Levy, 1  00 

Advertising  bills, 2  25 

Cryer, 75 

Poundage, 4  14 

Execution  habere  facias, 76  00 

The  sheriff's  bill  was  composed  of  the  following  items,  viz. 

Summoning  defendant, 75 

Copy, 121 

Court  fees, 12^ 

*24  Recognitors, 6  00    r^c  ^  7-1 

24     do.      do 6  00    L  '^'J 

24     do.      do 6  00 

Attending  do 2  62i 

21  62| 

The  particulars  of  the  prothonotary's  fees,  were  these,  viz. 

Writ  of  assize, 75 

Venire  facias, 1  50 

Filing  papers, 37f 

First  court, 37i 

4  Motions, 37| 

Judgment  of  court, 2  00 

2d  Court,      . 371 

Stationery, 10 

Taxing  plaintiff's  bill, 18| 

Do.  Recognitor's, 18f 

Trial, 75 

Rule  to  take  deposit, 27 

7  40  f 
51 


47  SUPREME  CX)URT  [Philadelphia, 

[Bamet  v.  Ihrie.]' 
The  fees  ot  the  recognitors  were  charged  thus : 

22  M.  Term,    . 22  00 

12  August,  T., 12  00 

15  November,  T.,    ...        15  00 

16  November,  T., 16  00 

21  January,  T.,  25,     .    . 21  00 

12,  26,  27,  28, 36  00 


137  00 


The  plaintiff's  bill  consisted  of  charges  for  subpoenas  and  the 
attendance  of  witnesses. 

The  costs  of  executing  the  writ  of  habere  facias  seisinam, 
consisted  of  money  paid  to  various  persons  for  assisting  the 
sheriff,  a  sum  of  three  dollars  seventy-five  cents  paid  for  rum 
and  powder,  a  fee  of  two  dollars  to  the  sheriff  for  delivering 
possession,  and  the  sum  of  nine  dollars  for  six  days'  attendance 
by  the  sheriff. 

In  addition  to  the  costs  above  enumerated,  there  was  a  charge 
of  three  dollars,  as  the  attorney's  fee. 

From  the  taxation  of  these  costs  by  the  prothonotary,  the 
defendant  entered  an  appeal  to  the  court,  upon  which,  however, 
no  decision  was  ever  made. 

The  plaintiff  moved  to  set  aside  the  execution,  and  in  support 
of  his  motion  filed  seven  reasons ;  upon  each  of  which  the  Presi- 
r*4«l  ^^^*  ®^  *i\xQ  Court  of  Common  Pleas  delivered  a  written 
L  -•  opinion.  The  court  having  refused  to  set  aside  the  exe- 
cution, the  record  was  removed  by  writ  of  error  to  this  court, 
where  five  errors  were  assigned  in  the  record  and  proceedings  be- 
low. On  the  argument,  however,  they  were  resolved  into  three 
points. 

Jmies  and  Binney,  for  the  plaintiff  in  error. — Everything  re- 
lating to  the  ancient  action  of  assize  of  nuisance,  which  is  now 
revived  after  a  long  slumber,  deserves  great  attention.  If  we 
are  to  adhere  to  the  old  law,  we  may  by  diligent  search  go  right ; 
but  if,  as  the  court  decided,  when  this  case  was  last  before  them, 
this  antiquated  remedy  is  to  be  modelled  according  to  modern 
forms,  great  consideration  is  necessary  in  every  stage  of  its  re- 
formation, particularly  in  fixing  the  true  character  of  the  judg- 
ment and  execution, 

1.  We  contend,  that  there  is  error  in  the  mandate  of  the  exe- 
cution, 

2.  That  there  is  error  in  the  costs  it  authorized  the  sheriff  to 
make. 

52 


DeG.  29,  1828.]      OF  PENNSYLVANIA.  48 

[Baxnet  v,  Ihrie.] 

3.  That  the  plaintiff  in  error,  is  entitled  to  restitution  of  all 
the  costs  illegally  levied. 

1.  It  must  be  conceded  to  us,  that  no  such  writ  as  that  in 
question,  is  any  where  to  be  found,  to  enforce  a  judgment  in  an 
assize  of  nuisance.  It  is  an  invention  peculiar  to  this  case,  and 
has,  for  its  basis,  the  execution  iu  an  assize  of  novel  disseisin. 
Writs  are  duly  applied  by  the  common  Jaw  to  enforce  particular 
judgments,  and  it  is  not  in  the  power  of  the  prothonotaries  or 
courts  to  change  them.  A  writ,  adapted  to  the  case,  and  of  an 
entirely  different  description  from  the  one  used,  is  found  in  the 
Register,  a  book  of  the  highest  authority.  Co.  Litt.  73,  3  Bl. 
Com.  183.  The  mandate  of  this  writ  is  to  distrain  the  plaintiff,  in 
order  to  make  him  abate  the  nuisance,  in  view  of  the  jurors. 
^^  Rex  vie'  salutem.  Seias  quod  convictus  <est  in  curia  nostra 
coram  justitiariis  nostris  ad  a^sisas,  &g.,  apud  8.  per  quarulam 
assisam  ibi  inter  H.  &  I.  qd  I.  divertit  eursum  cujusdam  aquce 
in  C.  ad  noeumentum  liberi  te7iementi  prced'  H.  in  S.  Et  ideo 
tihi  proeeipimus  quod  distringas  proid'  Joliannem  ad  reducen- 
dam  prced'  aquam  in  eursum  rectum  ad  eustagium  ejusdem 
Johannis,  per  visum  recognitorum  assises  prced"  &e.  Megis- 
trum  Judieiale,  p.  56.  No  other  form  than  this  is  to  be 
found.  There  is  nothing  superfluous,  deficient,  or  ambiguous. 
The  authorities  show  that  it  is  correct .  ip  principle.  The  ob- 
ject .  is  to  restore  the  ancient  state  of  things.  Fleta,  274, 
sect.  4,  269,  sect.  18 ;  Booth,  283.  With  this,  it  is  impossi- 
ble that  the  sheriff  should  be  acquainted.  But  it  is  known  to 
the  recognitors,  and  therefore  it  is  to  be  restored  in  their 
view.  It  is  no  objection  that  some  of  them  may  be  dead. 
The  business  can  be  done  as  effectually  in  the  presence  of  six, 
as  of  the  whole  number.  The  office  of  the  sheriff  is  merely 
ministerial  in  collecting  the  recognitors  together.  If  he  were 
to  undertake  to  restore  the  stream  *to  its  ancient  state,  p^j^qt 
he  must  do  so  blindly,  and  at  his  peril.  He  is  not  entitled  L  ^ 
to  indemnity,  and  is,  therefore,  placed  under  great  responsibility, 
without  protection.  According  to  the  authority  of  Fleta  and 
Booth,  the  abatement  is  to  be  by  the  defendant,  and  the  sheriff 
has  nothing  to  do,  unless  the  defendant  refuses  to  abate,  and  there 
is  nothing  to  distrain  upon.  Even  upon  an  indictment  for  a 
nuisance,  the  writ  does  not  go  to  the  sheriff  to  abate,  unless  the 
party  refuse  to  abate  at  his  own  cost.  Rex  v.  Newdigate,  Comb. 
10.  The  object  of  the  assize  is  to  make  the  defendant  abate, 
and  if  he  do  so,  pending  the  writ,  the  writ  itself  shall  abate. 
Fitz.  Nat.  Brev.  426.  In  this  respect,  it  differs  from  a  quod 
permittat,  the  object  of  which  is,  to  authorize  the  plaintiff  to 
abate.  Fitz.  Nat.  Brev.  289 ;  3  Bl.  Com.  221.  In  that  case, 
there  is  no  distringas,  nor  any  mandate  to  the  sheriff.     When- 

63 


49  SUPREME  COURT  [PJdladdphia, 

[Barnet  v.  Ihrie.] 

ever  the  sheriff  is  called  upon  to  do  an  act,  calling  fur  the  exer- 
cise of  judgment,  he  is  provided  with  an  inquest.  The  writ  of 
distringas  is  the  most  convenient,  jxiaceable,  and  reasonable 
remedy,  and  quite  as  effectual  as  the  one  resorted  to,  which  is 
calculated  to  produce  disorder  and  breaclies  of  the  j)eace.  A 
large  number  of  persons  brought  together  by  the  sheriff,  whose 
passions  are  inflamed,  as  well  by  rum,  as  the  nature  of  the  work 
in  which  they  are  about  to  engage,  and  with  powder  in  their 
hands,  can  hardly  be  expected  to  keep  within  the  peaceful  limits 
of  the  law.  To  reduce  a  dam  a  few  inches,  is  a  nice  operation, 
and  can  be  best  performed  by  the  party  most  interested  in  it. 
If  he  does  too  little,  he  may  be  enforced  to  do  what  is  right ; 
but  if  the  sheriff  and  his  posse  do  too  much,  as  is  most  likely  to 
be  the  case,  the  consequences  must  be  highly  injurious.  In  the 
analogous  case  of  detinue,  the  object  of  which  is  the  restoration 
of  a  specific  chattel,  of  which  the  sheriff  knows  nothing,  a  dis- 
tringas is  the  writ  of  execution.  Roll.  Ab.  737.  If  this  were 
res  nova,  the  distringas  would  be  the  most  convenient  and  a\)- 
propriate  writ  that  could  be  devised.  But  it  is  already  pro- 
vided, and  unless  the  court  is  at  liberty  to  depart  from  what  has 
been  established  by  law,  no  other  can  be  adopted.  The  entry  of 
"judgment  nisi,"  in  the  usual  short  mode,  is  not  the  judgment 
of  the  court,  that  the  sheriff  shall  abate  according  to  the  finding 
of  the  recognitors,  unless  that  be  the  judgment  which  ought  to 
have  been  given,  which  is  not  the  case.  There  is  nothing  to 
show,  that  the  court  intended  to  give  judgment,  that  the  sheriff 
should  restore  the  ancient  state  of  things.  Lill.  Ent.  578 ; 
Cases  Temp.  Hardw.  340,  355;  1  Yeates,  92,  575;  4  Dall. 
147;  3  Bl.  Com.  222;  1  Binn.  251,  253;  9  Serg.  &  Rawle, 
367  ;  Booth,  39,  were  also  cited  in  the  course  of  the  argument. 

2.  The  execution  for  costs,  is,  in  many  particulars,  wrong. 
The  judgment  on  the  roll,  is  "  Judgment  nisi/'  which  is  a  judg- 
ment for  the  costs  for  which  the  execution  issued.  There  is  no 
such  thing  as  a  general  judgment  for  costs,  reduced  to  form. 
The  costs  are  always  set  out.  In  no  other  way,  can  the  defend- 
ant in  error  justify  his  execution.  If  the  judgment  be  not  for 
these  costs,  there  is  no  judgment. 

r*  "lOl  *This  judgment  is  a  legitimate  subject  of  a  writ  of  error. 
•-  -I  To  allow  or  withhold  costs,  is  not  a  matter  of  discretion 
with  the  court  lielow.  To  do  either  improperly,  is  error.  It  is 
not  contended  on  behalf  of  the  plaintiff  in  error,  that  this  court 
can  review  the  evidence,  upon  which  the  court  below  taxed  the 
costs  which  are  allowed  by  law ;  but  it  is  contended,  that  where 
under  no  possible  state  of  facts,  the  costs  charged,  can  be  al- 
lowed, this  court  may  reverse  the  execution.  The  inquiry  does 
not  involve  a  review  of  the  evidence  exhibited  to  the  court  be- 
54 


Dec.  29,  1828.J      OF   PENNSYLVANIA.  50 

[Barnct  v.  Ihrie.] 

low.  If  this  jiulgmeut  were  drawn  out  at  length,  it  would  ap- 
pear, that  the  greater  part  of  the  costs  for  which  it  wa.s  given, 
were  compensatory  fees  which  are  expressly  forbidden  by  law, 
and  the  allowance  of  which,  makes  the  judge  guilty  of  a  mis- 
demeanor in  office.  If  the  law  does  not  authorize  the  costs 
which  have  been  allowed,  it  is  the  duty  of  this  court  to  reverse 
the  execution.  Ilgenfritz  v.  Douglass,  6  Binn.  402;  I^andis 
V.  Shaelfer,  4  Serg.  &  Rawle,  196  ;  Stuart  v.  Harkins,  3  J3inn. 
321 ;  Lewis  v.  England,  4  Binn.  5 ;  Sneively  v.  Weidman,  1 
Serg.  &  liawle,  417;  Galey  v.  Beard,  4  Yeates,  546;  Hinds 
V.  Knox,  4  Serg.  &  llawle,  417;  Down  v.  Lewis,  13  Serg.  &, 
Rawle,  198;  Curtis  v.  Buzzard,  15  Serg.  &  Bawle,  21  ;  Grace 
V.  Altemus,  15  Serg.  &  Rawle,  133 ;  Lord  Raym.  58  ;  Cassel 
V.  Duncan,  2  Serg.  &  Rawle,  57  ;  Wills  v.  Denny,  Moore,-  598, 
pi.  819;  Field  v.  Massachusetts  Turnpike  Company,  5  Mass. 
R.  389. 

(The  counsel  then  examined  the  several  bills  of  cost  returned 
with  the  record,  and  pointed  out  and  commented  upon  those 
items  which  they  considered  as  not  allowed  by  law  ;  referring 
in  the  course  of  their  observations,  to  the  Acts  of  the  28tli 
March,  1814,  sect.  26,  6  Sm.  L.  234;  22  February,  1821,  7 
Sm.  L.  367,  368,  369,  377 ;  29  March,  1805,  sect.  13,  Purd. 
Dig.  345;  1  Serg.  &  Rawle,  505  ;  4  Serg.  &  Rawle,  291.) 

The  appeal  from  the  prothonotary  to  the  court,  on  the  taxa- 
tion of  the  costs,  forms  no  objection  to  the  review  of  the  sub- 
ject by  this  court.  The  execution  was  executed  before  the  taxa- 
tion. The  appeal  was  nothing,  having  been  entered  after  the 
money  was  levied.  An  appeal  from  the  prothonotary  to  the 
court,  in  a  legal  sense,  is  nothing  under  any  circumstances,  and 
this  court,  cannot  recognize  it.  It  suspends  nothing ;  it  delays 
nothing.  The  judgment  and  execution  remain  in  full  force.  Be- 
sides, it  was  abandoned  by  the  suing  out  of  this  writ  of  error,  by 
which  the  record  is  removed,  and  nothing  left  before  the  court 
below. 

3.  The  plaintiff  in  error  is  entitled  to  restitution  of  what  has 
been  erroneously  levied.  It  is  a  matter  of  course  to  award 
restitution  on  the  reversal  of  an  execution  executed.  Cassel  v. 
Duncan,  2  Serg.  &  Rawle,  57. 

Porter  and  Tilgliman,  for  the  defendant  in  error. — The  plain- 
tiff below,  having  obtained  a  good  judgment,  was  entitled  to 
have  it  carried  into  execution.  It  was  entered  in  the  form  in 
which  *all  judgments  are  entered  within  the  first  four  r^icri-i 
days,  and  must  be  understood  to  be  upon  the  finding  of  L  ^ 
the  recognitors,  which  is  incorporated  into,  and  forms  part  of 
the  judgment  of  the  court.     The  recognitors  have  viewed  the 

55 


51  SUPREME  COURT  [Philadelphia, 

[Barnel  v.  Ihrie.] 

nuisance,  and  have  found  that  the  dam  .should  be  removed,  and 
that  the  defendant  should  pay  damages  to  the  amount  of  two 
hundred  dollars,  besides  costs,  and  this  court  have  decided  that 
the  judgment  is  a  good  one.     Whether  the  writ  of  e:!Kecution 
is  called  a  distringas  or  an  haherc  facias  seisiiiam,  is  of  little 
consequence,  provided  it  is  calculated  to  carry  the  judgment 
into  effect.     No  other  can  be  found  so  well  adapted  to  that  ol>- 
ject.     The  writ  recites  the  judgment  and  commands  the  sheriff 
to  do  execution  according  to  law.     If,  therefore,  there  is  error, 
it  is  in  the  judgment,  which  it  is  now  too  late  to  allege.     The 
whole  of  the  proceedings  in  assize  of  nuisance,  go  on  the  prin- 
ciple of  a  disseisin,  and  this  court  has  said,  they  are  the  same  as 
in  an  assize  of  novel  disseisin.     In  Lill.  Ent.  598,  is  the  form 
of  a  Writ  of  seisin  in  an  assize  of  novel  disseisin  of  an  office, 
which  states,  as  this  writ  does,  that  the  plaintiff'  recovered  by 
the  view  of  the  recognitors  of  assize.     In  affirming  the  judg- 
ment in  this  case,  at  the  last  term,  the  Chief  Justice  declared, 
that  in  adapting  this  action  to  modern  use,  it  is  to  be  purged  of 
its  subtletias  in  matters  of  form,  without  interfering  with  essen- 
tials.    If  it  is  to  be  made  to  correspond  with  motlern  modes  of 
proceeding,  it  must  necessarily  wear  a  different  dress  from  what 
it  formerly  did.     There  could  be  no  possible  use  in  the  presence 
of  the  recognitors.     Even  in  England,  no  case  has  occurred  for 
a  great  length  of  time,  in  which  the  recognitors  have  been  pres- 
ent at  the  execution  ;  and  if  the  law  was  so  three  hundred  years 
ago,  that  is  no  reason  why  the  same  highly  inconvenient  mode 
of  proceeding  should  now  be  adhered  to.     The  sheriff  is  the 
executive  officer  of  the  court.     He  is  the  highest  officer,  and  in 
contemplation  of  law,  the  first  man  in  the  county.     In  no  other 
hands,  therefore,  could  the  execution  of  the  judgment  of  the 
court  be  placed  with  greater  safety.    If  he  goes  beyond  his  duty 
or  executes  it  improperly,  he  is  responsible  for  his  acts,  and 
having  given  abundant  security,  there  is  ample  redress  for  those 
who  are  injured.     It  is  not  pretended  that  any  wrong  was  done 
in  the  execution  of  the  writ  in  question.     To  require  the  pres- 
ence of  the  recognitors,  would  always  be  inconvenient  and  some- 
times impossible.    There  may  be  an  obstruction,  to  abate  which, 
would  require  several  weeks.     Are  the  recognitors  to  be  present 
during  the  whole  time  required  for  its  removal  ?     This  would 
be  highly  oppressive.     The  judgment  may  be  removed  by  writ 
of  error,  and  hung  up  in  this  court  several  years,  in  the  course 
of  which,  some  of  the  recognitors  may  die.     Are  the  survivors 
to  attend  the  execution  of  the  writ  ?     There  is  no  law  for  that. 
The  integrity  of  the  jury  being  destroyed,  execution  cannot  be 
done  at  all.     In  speaking  of  the  view^  of  the  recognitors,  both 
the  author  of  Fleta  and  Booth,  refer  to  the  view  before  trial. 
66 


Dee.  29,  1828.]     OF  PENNSYLVANIA.  51 

[Barnet  v.  Ihrie.] 

Wlien  it  is  said  the  party  shall  have  th6  nuisance  removed  by 
the  *view  of  the  recognitors,  the  meaning  is,  in  conse-  r:^-^-! 
quence  of  their  view ;  for  when  Fleta  was  written,  the  •-  -' 
recognitors  found  upon  their  own  view,  without  hearing  witnesses. 
But  there  is  direct  authority  to  show  that  the  sherilf,  with  the 
posse  comitatls,  is  the  proper  instrument  to  abate  the  nuisance. 
3  Bl.  Com.  222.  Formerly  a  writ  of  habere  facias  possessionem, 
was  executed  in  the  presence  of  viewers ;  but  that  ancient  form 
no  longer  exists.  Schwenk  i\  Umsted,  6  Serg.  &  Rawle,  354. 
There  are  other  cases  in  which  the  sheriif  is  called  upon  to 
exei'cise  as  much  discretion  and  judgment  as  in  the  abatement 
of  a  nuisance.  In  dower,  the  sheriff,  without  a  jury,  assigns 
to  the  widow,  her  third  of  her  husband's  land ;  and  what  con- 
stitutes that  proportion,  is  left  to  him.  If  he  wilfully  errs, 
he  is  answerable.  In  the  present  case,  the  plaintiff  had  his 
election  between  a  distringas  and  an  habere  facias  seisinam. 
The  former  writ  being  the  least  efficacious,  he  has  rejected  it, 
and  adopted  the  latter,  as  the  best  calculated  to  give  effect  to 
the  judgment  of  the  court. 

2.  The  bill  of  costs  is  not  a  proper  subject  of  examination  by 
this  court.  There  was  an  appeal  to  the  Court  of  Common  Pleas, 
from  the  taxation  by  the  prothonotary,  and  that  appeal  has  never 
been  decided.  There  is,  therefore,  no  judgment  or  order  of  the 
court  in  relation  to  the  costs  in  question.  This  was  the  fault  of 
the  opposite  party,  who  having  objected  to  the  taxation  by  the 
prothonotary,  should  have  obtained  the  decision  of  the  court  on 
the  subject. 

In  all  the  cases  cited  in  support  of  the  opposite  argument,  the 
Court  of  Error  reviewed  judgments  in  the  inferior  courts,  involv- 
ing the  right  to  costs,  but  did  not,  as  they  would  be  obliged  to 
do  in  this  case,  inquire  into  the  taxation  of  the  different  items 
by  the  prothonotary,  which  would  require  an  examination  of 
evidence.  The  case  cited  from  5  Mass.  R.  389,  depended  on 
the  peculiar  situation  of  the  court  in  which  the  costs  were  taxed. 
The  same  court  reviewed  the  bill.  There  was  no  writ  of  error 
from  a  superior  to  an  inferior  court,  but  an  appeal  from  a  judge 
of  the  county  court,  to  the  court  in  bank. 

(The  counsel  for  the  defendant  in  error,  then  took  up  the 
bills  of  costs,  and  endeavoured  to  show  that  they  contained  no 
improper  charges.) 

The  opinion  of  the  court  was  delivered  by 

Gibson,  C.  J. — It  is  decisive  against  the  writ,  that  no  prece- 
dent for  it  can  be  shown,  it  being  essentially  different  from  the 
form  in  the  Register.  We  are,  to  say  the  least,  by  no  means 
familiar  with  these  antiquated  remedies ;  and  we  shall  proceed 

67 


52  SUPREME  COURT  [Philadelphia, 

[Barnet  v.  Ihrie.] 

safely  only  so  long  as  we  follow  the  footsteps  of  our  early  pre- 
decessors, discernible  in  the  books.  We  have  no  authority  tc 
change  the  nature  of  the  remedy  by  adopting  an  execution  un- 
known to  the  law.  Matter  of  form,  such  as  the  style  of  process, 
may  undoubtedly  be  altered  to  adapt  it  to  our  practice ;  but 
r^eq-i  therc  is  a  substantial  difference  between  *an  assize  of 
L  -I  nuisance,  and  an  assize  of  novel  disseisin,  from  which  the 
form  of  execution  employed  here,  has  been  borrowed.  Seisin, 
actual,  or  symbolical,  may  be  delivered  by  the  sheriff  without 
any  peculiar  disadvantage  to  the  disseisor;  but  it  certainly 
would  be  less  detrimental  to  the  author  of  a  nuisance,  to  abate 
it  himself,  especially  in  the  case  of  an  erection  that  may  be  still 
rendered  useful.  The  sheriff  and  his  posse,  could  not  be  ex- 
pected to  execute  the  judgment  with  as  little  injury  in  this 
respect,  as  the  owner  of  the  property ;  and.  before  he  shall  be 
deprived  of  the  opportunity  to  abate  the  nuisance,  which  the 
distringas  affords,  the  plaintiff  must  show  good  authority  for 
the  course  proposed.  He  has  not  done  so,  and  we  are  bound  to 
say  the  execution  issued  erroneously. 

An  objection  is  made  on  another  ground  which  it  is  unneces- 
sary, but  not  improper  to  examine.  The  plaintiff  has  taken  out 
execution  for  certain  costs  to  which,  it  is  said,  he  is  not  entitled  : 
and  this  involves  a  preliminary  inquiry  into  the  jurisdiction  of 
a  Court  of  Error,  of  the  subject  of  taxation. 

According  to  the  common  law,  error  can  be  assigned  only  in 
some  part  of  the  record,  and  consequently  not  in  a  bill  of  costs. 
In  England,  where  the  terms  of  the  judgment  are  set  out  at 
large,  a  gross  sum  is  adjudged  for  the  costs ;  and  a  Court  of 
Error  cannot  inquire  into  the  constituent  parts,  because  these 
cannot  judicially  be  made  to  appear;  so  that  where  costs  are 
recoverable  at  all,  it  cannot  be  alleged  that  too  much  or  too 
little  was  awarded.  Here,  however,  a  different  practice,  recog- 
nized in  a  long  train  of  decisions,  has  made  the  costs  so  far  a 
matter  of  record,  as  to  enable  the  court  to  judge  whether  the 
constituent  parts  of  the  bill  are  specifically  such  as  the  law 
allows.  With  us,  the  judgment  is  never  reduced  to  form,  but 
signed  in  blank,  it  being  considered  to  be  in  fact,  what  in  legal 
estimation,  it  ought  to  be ;  so  that  where  particular  parts  of  the 
costs  are  objectionable,  the  remedy  is  not  a  reversal  of  the  judg- 
ment p7'o  tanto,  unless  there  has  been  a  special  award  of  execu- 
tion for  those  costs,  but  the  execution  is  reversed,  so  far  as  re- 
spects the  objectionable  matter,  as  having  issued  without  a  cor- 
respondent judgment  to  warrant  it.  Here,  the  judgment  is  good 
in  point  of  form,  and  has,  in  fact,  been  affirmed  on  error ;  so 
that  the  defendant  would  be  without  remedy,  if  we  could  not  lay 
our  hands  on  the  execution. 
58 


Dec.  29,  1828.]      OF  PENNSYLVANIA.  53 

[Barnet  v.  Ihrie.] 

The  limitation  to  this  is,  that  we  will  not  take  cognizance  of 
an  exception,  which  depends  on  matter  of  fact. 

The  plaintiff's  bill  proper ;  the  sheriif 's  bill,  with  the  excep- 
tion of  three  items  for  the  recognitors,  amounting  to  eighteen 
dollars,  and  attendance,  two  dollars  and  sixty-two  cents ;  and 
the  prothonotary's  bill,  with  tlie  exception  of  two  dollars  for  the 
judgment  of  the  court,  are  all  unexceptionable.  There  is,  how- 
ever, a  charge  of  one  hundred  and  thirty-seven  dollars  for  the 
attendance  of  the  recognitors,  for  which  there  is  no  colour  of  law. 
Although  recognitors  are  sometijnes  called  jurors,  they  are  not 
so  within  the  meaning  of  the  fee  bill,  the  plain  intent  of  which, 
was  to  compensate  those  *who  should  be  of  the  general  r^x/n 
panel.  But  the  fees  even  of  such,  are  paid  not  by  the  L  J 
parties,  but  the  public ;  and  they,  therefore,  are  not  chargeable 
in  the  bill  of  costs.  There  is  no  provision  for  recognitors  ;  and 
compensatory  fees  are  expressly  forbidden.  In  conclusion, 
there  is  a  bill  for  expenses  incurred  in  doing  execution,  widch, 
as  well  for  the  reason  just  assigned,  as  because  the  execution 
was  unauthorized  by  the  law,  is  altogether  inadmissible. 

Execution  reversed.. 

Cited  by  Counsel,  3  E.  212,  276;  3  Barr,  128;  9  II.  529;  4  Wr.  310;  13  S. 
25  ;  9  W  N.  C.  58. 

Cited  by  the  Court,  3  E.  194;  2  J.  252. 
Followed,  1  N.  31 ;  s,  c.  3  W.  N.  C.  180. 


[Philadelphia,  December  29,  1828.] 

Diecliman,  Administrator  of  Smull,  against  The  North- 
ampton Bank. 

If  the  sheriff  misapply  money  that  comes  into  his  hands,  by  paying  one 
execution,  with  the  proceeds  of  property  sold  under  anotlier,  the  party  wlio 
receives  the  money,  is  not  bound,  provided  he  has  acted  fairly,  to  refund  it, 
either  to  the  sheriff  or  the  party  whose  money  has  been  improperly  paid 
away.  It  is  not  necessary,  on  receiving  a  payment  from  the  sheriflj  to  inquire 
out  of  what  fund  it  is  made. 

Ox  the  trial  of  this  cause  at  the  Circuit  Court  of  Lehigh 
county,  before  the  Chief  Justice,  on  the  17th  of  April  last,  it 
appeared  that  it  was  an  action  of  assumpsit,  brought  by  John 
Diechman,  surviving  administrator  de  bonis  non  cum  tedamento 
annexo  of  George  Smull,  deceased,  against  the  Northampton 
Bank,  for  money  had  and  received  by  the  defendants  to  the  use 
of  the  plaintiif. 

The  plaintiif  claimed  the  sum  of  seven  hundred  and  fifty-two 
dollars  and  forty-five  cents,  with  interest  from  the  29th  of  October, 
1819,  alleged  to  have  been  improperly  received  by  the  defend- 

59 


64  SUPREME  COURT  [PhUaddphia, 

[Diechman,  Administrator  of  Smull,  v.  The  Northampton  Bank.] 

ants,  from  the  sheriff  of  Lehigh  county,  Qut  of  the  proceeds  of 
the  sale  of  certain  real  estate  of  George  Smull,  deceased. 

It  appeared,  that  under  several  executions  issued  against 
Peter  Smull,  who  was  then  the  executor  of  George  Smull,  de- 
ceased, certain  real  estate  of  the  said  George  Smull  was  sold, 
and  the  proceeds  of  sale,  to  the  amount  of  three  thousand  six 
hundred  and  twenty-eight  dollars  and  ten  cents,  came  into  the 
hands  of  the  sheriff.  It  further  appeared  that  certain  personal 
property,  belonging  to  the  said  Peter  SiuuU  had  also  been  sold, 
the  net  proceeds  of  which,  amounting  to  one  hundred  and 
ninety-six  dollars  and  thirty-two  cents,  came  into  the  sheritf''s 
hands.  The  Northampton  Bank,  on  the  12th  of  September, 
1817,  obtained  a  judgment  against  Peter  Smull  individually, 
upon  which  a  fieri  facias  issued  to  August  Term,  1818,  Avhich 
was  returned  "  levied  on  personal  property."  A  venditioni 
exponas  issued  to  November  Term,  1818,  which  was  returned, 
"sale  set  aside  by  the  court;"  and  to  February  Term,  1819,  an 
P^__-|  alias  venditioni  exponas  issued,  *which  was  returned, 
•-  J  "  debt  and  costs  paid."  There  was  no  proof  that  any 
money  had  been  paid  by  Peter  Smull  to  the  sheriff*,  on  account 
of  this  judgment,  and  the  sale  of  his  personal  property  amounted 
to  no  more  than  the  sum  of  one  hundred  and  ninety -six  dollars 
and  thirty-two  cents,  besides  costs. 

The  slw^riff"  paid  to  the  cashier  of  the  Northampton  Bank,  the 
sum  of  seven  hundred  and  fifty-two  dollars  and  forty-five  cents, 
for  which  he  gave  a  receipt  in  these  words,  viz. : 
I 

"  Northampton  Bank  v.  Peter  Smull. 

"Received,  October  the  29th,  1819,  of  Anthony  Musick, 
(the  sheriff",)  seven  hundred  and  fifty-two  dollars  and  forty-five 
cents,  which  includes  four  dollars,  attorney's  fee,  for  the  North- 
ampton Bank. 

Signed  "  J.  F.  Ruke,  Jr.,  cashier." 

Musick  proved  the  payment  of  this  money  to  Mr.  Ruke  as 
cashier  of  the  bank,  but  whether  out  of  real  or  personal  property, 
he  could  not  say.  He  said  that  a  statement  made  for  him  by 
Mr.  Henry  King,  showing  the  distribution  of  the  proceeds  of  the 
real  estate  of  George  Smull,  deceased,  was  correct,  and  was 
made  to  show  whether  he  was  even  or  uneven  with  the  real 
estate.  He  further  stated  that  he  only  settled  the  real  estate : 
That  the  personal  estate  had  been  paid  to  others  :  That  he  was 
in  the  habit  of  depositing  money  in  the  bank,  and  sometimes 
paid  parties  by  checks,  and  sometimes  drew  out  the  money  him- 
self and  paid  them. 

The  plaintiff"  then  produced  the  proceedings  in  the  Orphans* 
60 


Dec.  29,  1828.]      OF  PENNSYLVANIA.  55 

[Diechman,  Administrator  of  SmuU,  v.  The  Northampton  Bank.] 

Court,  in  pursuance  of  which  Peter  Smull  was  on  the  13th  of 
November,  1819,  discharged  from  the  office  of  executor  of  the 
estate  of  GeOrge  Smull,  deceased ;  and  the  letters  of  administra- 
tion de  bonis  non  of  the  said  estate,  with  the  will  annexed, 
which,  on  the  14th  of  December  of  the  same  year,  were  granted 
to  the  plaintiff. 

The  defendants,  after  having  given  in  evidence  the  vendue 
papers  of  the  personal  estate  of  Peter  Smull,  deceased,  called  J. 
F.  Ruke,  Jr.,  the  material  part  of  whose  testimony  was,  that  in 
the  year  1819,  he  was  cashier  of  the  Northampton  Bank  :  That 
Sheriff  Musick,  by  a  check  on  the  bank,  paid  into  his  hands  as 
cashier,  the  sum  of  money  in  question,  in  payment  of  Peter 
Smull's  note :  That  Musick  had  a  running  account  with  the 
bank,  in  which  he  made  deposits  from  time  to  time :  That  at 
different  times  he  had  received  discounts,  and  the  witness 
thought,  that  previous  to  giving  him  the  check  above  mentioned, 
he  obtained  a  discount  for  about  three  hundred  dollars,  but  he 
could  not  say  whether  or  not  the  discount  made  part  of  the 
money  paid  to  him  :  That  the  discount  went  to  Musick's  credit 
in  his  general  account :  That  after  drawing  the  check,  the  bal- 
ance of  his  account  did  not  amount  to  fifty  dollars ;  and  that 
Sheriff  Musick  never  deposited  money  to  the  credit  of  any  par- 
ticular suit.  Some  further  evidence  was  given,  which  it  is  not 
necessary  to  state. 

*The  jury,  under  the  direction  of  the  court,  found  a  r*rp-| 
verdict  for  the  defendants ;  and  a  motion  was  made  by  L  -' 
the  plaintiff's  counsel,  for  a  new  trial,  for  which  the  following 
reasons  were  filed : 

1.  That  the  court  erred  in  charging  the  jury. 

That  money  claimed  to  be  recovered,  musi  be  traced,  unless 
it  has  been  received  unfairly,  or  its  receipt  was  contrary  to  com- 
mon honesty. 

That,  if  received  in  mistake,  without  fraud  or  itaproper  con- 
duct, it  could  not  be  recovered  unless  its  identity  were  established. 

That  the  money  claimed,  could  not  be  recovered  from  the  de- 
fendants, if  it  did  not  appear,  that,  at  the  time  of  its  receipt, 
the  officers  of  the  bank  knew  they  were  not  entitled  to  receive 
it ;  and  that,  unless  they  received  it,  knowing  they  had  no  right 
to  it,  they  could  not  be  compelled  to  refund  it. 

That,  if  the  officers  of  the  bank  received  it  in  mistake,  yet 
they  are  protected  after  this  lapse  of  time,  if  its  receipt  origin- 
ally took  place  under  a  belief  that  they  were  entitled  to  it, 
although  that  belief  was  incorrect. 

That,  unless  the  money  received  by  the  bank,  was  the  identi- 
cal money  made  by  the  sale  of  the  real  estate  of  George  Smull, 
deceased,  it  could  not  be  recovered  in  this  suit ;  and  that,  if  the 

61 


56  SUPREIklE   COURT  [Philadelphia, 

[Diechman,  Administrator  of  Smull,  v.  The  Northampton  Bank.] 

money  so  paid,  arose  from  the  proceeds  of  other  executions  in 
Sheriff  Musick's  liands,  or  from  discounts  obtained  by  liim,  as 
his  account  in  the  bank  was  a  mixed  up  one,  the  plaintiff  could 
not  recover,  although,  in  accounting  for  the  proceeds  of  the  sale 
of  the  real  estate  of  George  Smull,  deceased,  Sheriff'  Musick  took 
credit  for  tiie  sum,  as  being  paid  out  of  those  proceeds. 

2.  Tiiat,  under  the  evidence  in  the  cause,  the  court  should 
have  charged  the  jury,  that  if  it  appeared  in  evidence,  that  the 
late  Sheriff  Musick  paid  the  defendants  the  amount  of  their 
judgment  against  Peter  Smull,  or  any  part  of  it  out  of  the  pro- 
ceeds of  the  sale  of  the  real  estate  of  George  Snmll,  deceased, 
sold  by  him,  the  plaintiff  was  entitled  to  recover  the  amount  so 
received  by  defendants,  without  establishing  the  identity  of  the 
money. 

3.  That  it  appeared  in  evidence,  that  on  the  29th  of  October, 
1819,  the  defendants  did  receive  of  Anthony  Musick,  as  sheriff, 
seven  hundred  and  fif\:y-two  dollars  and  forty-five  cents,  the 
whole  of  which,  including  the  sum  of  sixty-eight  dollars  and 
ninety-eight  cents  additional,  was  discharged  by  the  proceeds  of 
the  said  real  estate,  except  the  sura  of  one  hundred  and  ninety- 
six  dollars  and  thirty-two  cents ;  and  that,  under  this  evidence 
the  court  should  have  charged  the  jury  that  the  plaintiff  was 
entitled  to  recover. 

A  new  trial  having  been  refused,  an  appeal  was  entered,  on 
behalf  of  the  plaintiff,  to  the  court  in  bank. 

Brooke  and  Porter,  for  the  appellant. — It  is  perfectly  clear, 
from  the  evidence,  that  the  property  of  George  Smull,  deceased, 
has  been  appropriated,  by  the  sheriff,  to  the  payment  of  a  dfebt 
due  to  the  bank,  by  Peter  Smull,  in  his  individual  character,  and 
r;^c--]  the  question  *is,  whether  the  representative  of- George 
L  J  Smull,  is  entitled  to  recover  back  the  money  thus  wrong- 
fully paid  ?  The  bank  knew,  when  they  received  this  money, 
that  it  was  paid  out  of  a  fund  not  applicable  to  the  debt.  The 
only  money  traced  into  the  sheriff's  hands,  belonging  to  Peter 
Smull,  was  one  hundred  and  ninety-six  dollars  and  thirty-two 
cents.  This  the  bank  knew,  or  ought  to  have  known,  as  they 
had  pursued 'him  to  execution.  The  case  comes  within  the  well 
established  rule,  that  wherever  money  is  paid  by  mistake ; 
wherever  the  plaintiff,  in  good  conscience,  ought  to  have  it,  or 
the  defendant  in  good  conscience  ought  not  to  retain  it,  it  may 
be  recovered  in  an  action  of  assumpsit.  It  is  not  necessary, 
that  the  money  should  have  been  received  against  conscience ; 
it  is  enough  if  it  be  so  retained.  2  Com.  on  Cont.  35  ;  Moses  v. 
M'Ferlan,  2  Burr.  1005;  2  Pothier  on  Obligations,  (Evans'  Edit. 
App.)  378  ;  Union  Bank  v.  Bank  of  the  United  States,  3  Mass. 
62 


Vec.  29,  1828.]      OF  PENNSYLVANIA.  57 

[Diechman,  Admin '.si  rator  of  Smull,  v.  The  Northampton  Bank.] 

Rep.  74;  Diimond's  Administrators  v.  Carpenter,  3  Johns.  18.1L 
The  sheriff  holds  money  as  a  trustee  for  those  who  are  entitled 
to  receive  it ;  and  if  he  could,  himself,  recover  from  the  bank,  on 
the  ground  of  its  having  been  paid  by  mistake,  (as  he  undoubt- 
edly could,)  and  would  then  be  bound  to  pay  it  over  to  the 
plaintiff,  it  may  be  recovered  by  the  plaintiff  directly  from  the 
bank.  If  a  person,  who  is  a  mere  stakeholder,  pay  money  to 
one,  which  he  ought  to  have  paid  to  another,  he  who  is  entitled 
to  it  may  recover  it  back,  unless  the  contract  was  illegal.  Bridgm. 
N.  P.  60,  pi.  268,  270.  It  is  going  too  far  to  say  that  the  iden- 
tity of  the  money  must  be  established.  It  cannot  be  done ;  and 
if  this  be  the  true  rule,  it  will  destroy  the  action  of  assumjpsit, 
where  one  man  Jias  received  the  money  of  another.  Nor  is 
privity  between  the  parties,  at  all  necessary.  If  the  sheriff  seize 
the  goods  of  A.,  instead  of  those  of  B.,  and  sell  them,  A.  may 
recover  the  money  in  an  action  of  assumpsit;  yet  there  is  no 
privity.     This  has  been  long  since  determined. 

If  the  court  decide,  that  the  bank  may  retain  the  money  they 
have  received,  there  will  always  be  a  scramble,  whenever  money 
comes  into  the  sheriff's  hands. 

The  circumstance  of  the  plaintiff  having  slept  so  long  before 
bringing  his  action,  is  easily  explained.  The  case  is  peculiar. 
Peter  Smull  wasted  the  estate  of  the  testator,  and  was  ulti- 
mately dismissed  from  the  executorship.  After  some  time,  the 
administrator  de  bonis  non  discovered  the  misappropriation  of 
the  money.  The  sheriff  was  insolvent,  and  it  was  in  vain  to 
look  to  him  ;  and  the  bank  having  received  what  they  were 
not  entitled  to,-  an'd,  in  equity,  ought  not  to  retain,  this  action 
was  brought. 

Davis  and  Binney,  for  the  appellees. — From  the  20th  of  Octo- 
ber, 1819,  the  date  of  the  receipt  of  the  cashier,  until  the  18th 
of  November,  1825,  when  this  suit  was  brought,  no  intimation  was 
ever  given  to  the  defendants,  that  there  was  anything  impro})cr 
in  their  having  *received  the  money  in  question.  An  rjjcro-i 
application  is  now  made  to  unrav^el  the  transaction,  long  L  '  J 
after  the  sheriff  has  gone  out  of  office ;  and  certainly  no  case  of 
stronger  equity,  as  regards  the  defendants,  or  of  greater  incon- 
venience, as  res])ects  the  profession,  can  be  presented.  If  it  be 
sustained,  it  will  be  necessary,  wherever  money  comes  into  the 
hands  of  the  sheriff,  that  he  should  pay  it  into  court,  under 
whose  order  alone,  there  will  be  any  security  in  receiving  it. 
When  attorneys  receive  money  for  their  clients,  inquiry  is  never 
made,  out  of  what  fund  they  are  paid.  To  require  them  to  make 
such  an  inquiry,  would  be  attended  with  the  utmost  inconveni- 
ence in  practice,  and  there  is  certainly  no  law  to  justify  it.      It 


58  SUPREME  COURT  [Phikulelphia, 

[Diechmiin,  Administrator  of  SiuuU,  v.  Tlie  Northampton  Bank.] 

the  rule  were  cstablislicd,  that,  wherever  money  is  j)ai<l,  the  re- 
ceiver must  investigate  tlie  payer's  right  to  pay,  half  the  operations 
of  mankind  would  be  stopped.  If  the  receiver,  in  good  conscience, 
may  receive  the  money,  he  is  not  bound  to  refund,  however 
improper  the  conduct  of  the  payer  may  have  been  as  regards 
third  persons.  There  is  a  wide  distinction  between  money  and 
a  specific  chattel.  For  the  latter,  an  action  of  trover  may  be 
maintained,  no  matter  into  whose  hands  it  may  come,  on  the 
ground,  that  the  property  has  not  passed  out  of  the  original 
owner.  But,  with  respect  to  money,  Avhich  is  the  medium  of 
commerce,  and  has  no  mark,  it  is  ditferent ;  and  where  there  is 
no  privity  between  the  parties,  it  cannot  be  recovered  back,  un- 
less it  has  been  received  mala  fide,  and  the  identical  money  of 
the  plaintiff  can  be  traced  into  the  hands  of  the  defendant. 
Rapalje  v.  Emory,  2  Dall.  54.  This  has  been  the  law  ever 
since  Clarke  v.  Shee,  Cowp.  197,  the  first  case  of  any  importance 
on  the  subject,  in  which  a  servant  paid  his  master's  money  for 
the  insurance  of  lottery  tickets ;  and  it  was  held,  that  the  pay- 
ment having  been  made  mala  fide,  and  received  by  the  broker 
in  violation  of  law,  and  the  identical  notes  and  money  of  the 
plaintiff  having  been  traced  into  the  defendant's  hands,  they 
might  be  recovered  back  in  an  action  of  assumpsit.  The  same 
principle  is  the  ground  work  of  the  decision  of  Rogers  v.  The 
Huntingdon  Bank,  12  Serg.  &  Rawle,  77.  In  the  present  case, 
the  bank  had  no  reason  to  believe,  that  the  money  was  not  reg- 
ularly paid  to  them  under  their  execution.  This  fact  was  left 
to  the  jury,  who  have  found  in  their  favour.  There  was,  there- 
fore, no  w^ant  of  conscience  on  the  part  of  the  bank ;  but  there 
was  on  the  part  of  the  plaintiff,  who  laid  by  for  more  than  six 
years,  and  made  no  demand  until  the  sheriff  had  become  insol- 
vent. The  sheriff  himself,  could  not  recover  back  this  money. 
There  was  no  evidence  of  mistake,  on  his  part,  as  to  fact.  He 
knew  where  the  money  came  from;  and  it  is  not  pretended, 
that  when  he  was  paying  the  money  of  George,  he  supposed  he 
was  paying  the  money  of  Peter.  If  there  was  no  mistake  in 
point  of  fact,  mistake  in  point  of  law  avails  nothing.  No  in- 
stance can  be  found  in  which  a  party,  who  has  paid  money, 
with  a  full  knowledge  of  facts,  but  under  an  erroneous  view  of 
r*KQi  the  law,  has  been  permitted  to  recover  *it  back.  Pothier 
L  J  on  Obligations,  391.  The  foundation,  therefore,  of  the 
whole  of  the  opposite  argument  is  wanting.  There  was  no 
evidence  of  mistake. 

But,  if  the  mistake  had  been  proved,  the  sheriff  could  not 

recover  from  the  bank,  whose  answer  to  such  a  claim  would  be, 

you  have  no  right  to  make  this  demand  after  a  lapse  of  six  years. 

If  Musick  had  filed  a  bill  in  eljuity,  under  such  circumstances, 

64 


Z)e«.29,1828.]       OF  PENNSYLVANIA.  59 

[Diechman,  Administrator  of  Smull,  v.  The  Northampton  Bank.] 

(and  an  action  for  money  had  and  received  is  a  bill  in  equity,) 
it  would  have  been  dismissed ;  which  would  also  have  been  the 
fete  of  a  bill  filed  by  him  for  the  use  of  the  party  Avhose  money 
he  had  paid  in  mistake,  and  who  had  slept  so  long  upon  his 
claim. 

Granting,  however,  the  right  of  the  sheriff  to  recover,  it  by 
no  means  follows,  that  the  plaintiff  has  the  same  right.  The 
sheriff  is  not  the  agent  of  the  party,  but  the  officer  of  the  law, 
Stable  V.  Spohn,  8  Serg.  &  Rawle,  317.  Goods,  after  having 
been  levied  upon,  become  his  property,  and  he  may  maintain 
trover  for  them.  When  they  are  sold,  the  money  is  his,  not  in- 
deed absolutely,  but  in  a  qualified  sense,  and  subject  to  his  duty 
as  a  law  officer.  His  payment  was  entirely  independent  of  the 
plaintiff,  who,  if  he  is  injured,  must  look  to  the  sheriff,  and  not 
to  the  defendants,  who  did  nothing  against  conscience  in  receiv- 
ing the  money.  To  maintain  this  action,  it  is  not  enough,  that 
the  money  has  been  unconscieutiously  paid ;  it  must  be  uncon- 
scientiously  received  also. 

The  opinion  of  the  court  was  delivered  by 

Huston,  J. — The  Northampton  Bank  had  a  judgment  against 
Peter  Smull,  individually,  on  the  12th  of  September,  1817. 
They  issued  a  fieri  faeias,  to  August,  1818,  which  was  returned 
''levied  on  personal  property."  A  venditioni  expotlas,  issued 
to  November  Term ;  and  an  alias  venditioni  exponas,  to  Feb- 
ruary Term,  1819,  which  was  returned,  "debt  and  costs  paid." 
The  sheriff,  who  was  called,  produced  the  receipt  of  the  cashier. 
The  cashier  was  called,  who  proved  that  the  sheriff  kept  an  ac- 
count in  the  bank,  but  not  a  separate  account  for  each  suit ;  that 
his  funds  in  the  bank,  at  the  time  of  paying  this  money,  con- 
sisted of  deposits,  and  the  proceeds  of  a  note  discounted  for  the 
sheriff  in  the  bank ;  that  the  debt  was  paid  by  a  check.  Evi- 
dence, however,  was  given  to  prove  that  the  personal  property 
of  P.  Smull  did  not  sell  for  the  amount  of  this  debt,  nay,  for 
only  about  one  quarter  of  it. 

It  also  appeared,  that  Peter  Smull  .w^as  the  executor  of  George 
Smull,  at  that  time,  (though  since  removed,  and  the  plaintiff  sub- 
stituted in  his  place ;)  that  there  were  three  several  judgments 
against  Peter  Smull,  executor  of  George  Smull,  amounting  to 
about  three  thousand  six  hundred  dollars,  on  which  lands  of 
George  Smull,  deceased,  were  sold  to  that  amount ;  and  it  was 
alleged  that  part  of  the  money  raised  by  the  sale  of  the  lands  of 
George  Smull,  was  applied  by  the  sheriff  to  pay  this  debt  of 
Peter's  to  the  Northampton  Bank. 

*The  judge  left  it  to  the  jury  to  determine,  whether  ri^orfi 
there  was  any  evidence  that  this  money  paid  to  the  bank,    •-       ^ 

VOL.  i.^  65 


60  SUPREME  COURT  [Philaddphia, 

[Diechman,  Adminbtrator  of  SmuU,  r.  The  Northampton  BanL] 

arose  from  the  sale  of  G.  Smull's  estate,  on  wljicli  subject,  the 
evidence  wjis  far  from  conclusive ;  and  told  them,  in  substance, 
that  even  if  it  should  be  found  that  this  money  or  part  of  it 
arose  from  the  sale  of  the  said  lands,  yet  if  the  bank  or  their 
officers  did  not  know  it  to  be  from  that  source,  if  tlie  bank 
acted  fairly  and  received  their  money  from  an  officer  who  had 
process  to  collect  it,  and  who  appeared  to  have  collected  it,  they 
could  keep  it,  and  were  not  liable  to  refund  it  unless  some  fraud 
or  unfairness  had  been  used  by  them  to  induce  the  sheriif  to  pay 
the  money  which  they  knew  belonged  to  other  peojile,  in  dis- 
charge of  their  debt.  There  was  no  error  in  the  charge,  and 
this  case  admits  of  no  doubt.  The  doctrine  that  if  a  man  pays 
money  by  mistake,  does  not  apply  to  a  case  like  this.  I  believe 
no  sheriif  keeps  an  account  in  bank  for  every  different  suit  put 
into  his  hands.  The  plaintiff,  whose  execution  he  has  levied 
and  on  which  he  has  sold,  has  a  right  to  apply  for  his  money, 
and  if  it  is  paid  him,  he  may  safely  take  it  and  give  a  receipt. 
He  is  not  bound  to  inquire,  whether  this  is  the  identical  money 
made  by  the  sale  of  his  debtor's  goods  :  to  make  such  inquiry, 
would  be  impertinent.  If  he  receives  no  more  than  was  due,  he 
is  not  answerable  for  that  money  to  any  person.  It  would  be 
intolerable  if  a  plaintiff,  after  expense  and  delay  in  collecting  a 
debt,  should  subject  himself  to  twenty  suits  by  receiving  it ; 
and,  according  to  the  plaintiff's  doctrine,  he  would  do  so,  if 
twenty  persons  could  prove  that  a  part  of  the  money  belonging 
to  them,  was  used  by  the  sheriff  in  paying  that  person. 

It  too  often  happens  that  sheriffs  misapply  money.  The  mis- 
application of  money  belonging  to  one  man,  leads  to  misapplica- 
tion of  the  next  money  coming  into  his  hands,  and  so  on  to  the 
end  of  his  office ;  and  thus  every  execution  would  give  rise  to  a 
new  suit.»  But,  in  these  cases,  there  is  no  mistake :  the  sheriff 
knows  he  is  misapplying  money ;  he  who  receives  it  does  not  know 
it,  but  he  knows  he  is  receiving  what  the  sheriff  owes  him,  and 
he  is  not  bound  to  know  more.  The  sheriff  himself  could  not, 
in  such  case,  recover  it  back.  The  sheriff  and  his  sureties  were 
liable,  perhaps,  to  the  plaintiff;  the  bank  never  was,  and,  if  it 
was,  from  the  facts  and  dates  in  this  case,  the  Statute  of  Limita- 
tions, which  was  pleaded,  Avas  a  bar  to  the  plaintiff's  recovery. 
The  cases  of  Rapalje  v.  Emory,  in  2  Dall.  51,  and  Rogers  v.  The 
Huntingdon  Bank,  12  Serg.  &  Rawle,  77,  are  much  stronger 
than  this. 

Smith,  J.,  having  been  employed  as  counsel  in  the  cause,  took 
no  part  in  the  decision. 

Judgment  affirmed. 

Cited  bv  Counsel,  1  Penn.  R.  175 ;  1  Wh.  107 ;  3  W.  48;  7  Burr.  519 ;  3  H. 
425;  9  H!  303 ;  14  Wr.  23 ;  7  0.  489 ;  s  c.  14  W.  N.  C.  220. 

66 


Dec.  29,  1828.]      OF  PENNSYLVANIA.  61 

*[Phii,adelphia,  December  29, 1828.]  [*61] 

Shields  and  Others,  Executors  of  Shields,  against  Owens. 

IS  ERROR. 

A  church  being  in  embarrassed  circumstances,  borrowed  money  of  certain 
banks,  for  which  two  of  its  members  gave  notes  drawn  and  indorsed  by  them- 
selves. Tlie  banks  having  required  further  security,  an  agreement  was  entered 
into,  by  which,  upon  a  third  member  of  the  congregation  consenting  to  be- 
come an  additional  indorser  upon  the  notes,  thirty  others  bound  themselves, 
in  default  of  payment  being  made  by  the  church,  to  make  good  the  deficiency, 
so  that  tlie  drawers  and  indorsers  of  the  notes  should  not  sutler  loss,  provided 
tlie  said  drawers  and  indorsers  should  continue  their  names  on  the  notes  to  the 
end  of  the  time  required  for  the  payment  of  the  debt,  which  it  was  stipulated 
should  be  paid  off  in  ten  years,  by  annual  instalments  of  ten  per  cent. ;  and  in 
case  the  cliurch  should  make  default  in  paying  these  instalments,  the  subscribers 
to  the  contract  agreed,  that  the  deficiencies  should  be  divided  among  them  in 
equal  parts.  The  notes  were  regularly  renewed,  from  time  to  time,  until  the 
death  of  the  last  indorser,  which  took  place  a  few  years  after  the  date  of  the 
agreement.  After  his  death,  liis  executors  were  called  upon  by  a  committee 
of  the  church  to  renew  the  notes,  which  the  banks  would  have  permitted  under 
the  circumstances  of  the  case.  The  executors,  however,  refused  to  renew,  suf- 
fered the  notes  to  be  protested,  and  afterwards  paid  them.  After  the  lapse  of 
several  years,  they  brouglit  this  action  against  the  defendant,  as  one  of  the  tliirty 
who  had  signed  the  agreement  of  indemnity,  to  recover  his  proportion  of  the 
instalments  of  ten  per  cent.,  which  had  become  due  prior  to  the  commencement 
of  the  action.  Held,  that  they  had  substantially  complied  with  the  contract 
of  their  testator,  and  were  entitled  to  recover. 

In  the  Court  of  Common  Pleas  of  Philadelphia  coimty,  to 
which  this  was  a  Avrit  of  error,  Thomas,  Robert,  Johu  and 
David  Shields,  executors  of  Thomas  Shields,  deceased,  brought 
this  action  to  September  Term,  1823,  against  John  Owens,  the 
defendant  in  error,  to  recover  a  sum  of  money  alleged  to  be 
due  under  a  certain  agreement,  bearing  date  the  28th  of  July, 
1817. 

It  was  agreed  that  the  cause  should  be  tried  on  the  merits, 
without  regard  to  the  form  of  action  or  of  the  pleadings. 

The  charge  of  the  President  of  the  court  below,  which  was 
filed  agreeably  to  the  directions  of  the  act  of  assembly,  con- 
tained the  only  statement  of  facts  which  a2>peared  on  the  record. 
It  was  as  follows  : 

KiXG,  President. — "  This  action  is  brought  by  the  plaintiffs, 
acting  executors  of  Thomas  Shields  deceased,  to  recover,  of  the 
defendant,  the  sum  of  .$ ,  which,  it  is  supposed,  he  has  be- 
come liable  to  pay  to  them  under  the  following  circumstances : — 
The  Baptist  church,  in  Sansom  street,  Philadelphia,  was  incor- 
porated in  the  year  1811,  and  being  in  want  of  funds  to  carry 
on  their  building,  several  of  the  members  borrowed  monev,  for 

67 


61  SUPREME  COURT  [Philadelphia, 

[Shields  and  others,  Executors  of  Shields,  v.  Owens.] 

the  use  of  the  cliurch,  of  the  banks  of  Pennsylvania  and  Phila- 
delphia, and  gave  them  their  promissory  notes,  which  were  dis- 
counted by  tliese  institutions,  and  the  proceeds  applied  to  the 
r+no-i  use  of  the  cliurch.  The  notes  *commenced  in  1811,  and 
L  J  continued  up  to  1817;  at  first  increasing,  and  after- 
wards diminishing  in  amount.  The  banks  becoming  dissatisfied 
with  the  security  about  this  time,  Thomas  Shields,  the  deceased, 
then  a  member  of  the  church,  became  an  indorser  upon  the 
notes,  in  consequence  of  which,  the  credit  given  to  the  church 
was  continued.  To  secure  the  testator  from  eventual  responsi- 
bility, the  stipulation  or  indemnity,  which  is  the  foundation  of 
this  action,  was  signed  by  Thomas  Shields,  by  John  Owens,  the 
defendant,  and  twenty-nine  others. 

[His  Honour  here  read  the  contract,  which  was  in  these 
words  :] 

"  The  Baptist  Church,  in  Sansom  street,  Philadelphia,  of 
which  the  Lord  has  been  pleased  to  make  us  members,  being,  at 
this  time,  under  pecuniary  embarrassment,  on  account  of  money 
borrowed  for  the  use  of  the  church,  of  the  banks  of  Pennsyl- 
vania and  Philadelphia,  and,  a  further  security  being  required, 
that  a  length  of  time  may  l)e  given  for  the  payment  of  said 
notes,  we,  the  subscribers,  do  agree,  and  do  hereby  firmly  bind 
ourselves,  and  our  legal  representatives,  that,  upon  our  brother, 
Thomas  Shields,  becoming  one  of  the  three  indorsers  of  the 
notes  in  said  banks  (whose  names  will  then  stand  as  follows : 
Joseph  Maylin,  C.  F.  Regnault,  and  Thomas  Shields,)  that,  in 
default  of  payment  being  made  by  the  said  church,  in  manner 
and  time  as  hereafter  specified,  we  will  contribute  and  make 
good  such  deficiencies  to  the  utmost  extent;  so  that  the  said 
drawer  and  indorsers  shall  not  suffer  any  loss  thereby.  It  being 
understood,  expressly,  that  the  parties  to  the  said  notes  shall 
(whether  drawer  or  indorsers)  continue  their  name  to  the  end 
of  the  time  which  may  be  required  for  payment  of  the  same ; 
the  aggregate  amount  being  six  thousand  three  hundred  dollars ; 
and  it  being  agreed,  that  the  same  shall  be  paid  by  instalments 
of  ten  per  cent,  per  annum,  to  be  paid  off  in  ten  years.  And, 
in  case  of  default  of  the  church,  in  paying  the  instalments,  the 
deficiencies  shall  be  divided  amongst  us,  in  equal  parts,  accord- 
ing to  the  number  of  the  subscribers  to  this  instrument,  and  in 
no  otherwise ;  and  it  is  further  agreed,  that  if  any  of  the  sub- 
scribers shall,  in  the  space  of  three  years  from  the  date  hereof, 
pay  for  him  or  herself,  or  procure  and  pay  to  the  church  (for  the 
express  purpose  of  paying  the  aforesaid  sum  of  six  thousand 
three  hundred  dollars)  the  full  and  entire  sum  which  shall  be 
his  or  her  proportion  of  the  said  notes,  dividing  according  to 
the  number  of  the  names  subscribed  to  this  instrument,  that  such 
68 


Dec.  29,  1828.]      OF  PENNSYLVANIA.  62 

[Shields  and  others,  Executors  of  Shields,  v.  Owens.] 

person  shall  be  released  from  all  further  obligation  or  responsi- 
bility, and  his  or  her  name  be  considered  as  taken  off. 
"  Philadelphia,  28th  of  July,  1817. 

(Signed)  "Thomas  Shields, 

"  John  Owen  and  29  others." 

"  Mr.  Shields'  indorsement  continued  until  his  death,  which 
took  place  on  the  8th  of  December,  1819,  during  which  time  the 
notes  were  gradually  reduced  by  the  church,  in  amount,  accord- 
ing to  the  ^testimony  of  Mr.  Britton,  exceeding  the  ten  rn^no-i 
per  cent,,  stipulated  in  the  contract  of  indemnity.  At  ^  -• 
this  time  two  notes  were  iu  bank,  which  had  been  discounted : 
one  for  $1700,  iu  the  bank  of  Philadelphia,  dated  the  27th  of 
Septemher,  1819,  drawn  by  Clarie  Francois  Regnault,  and  in- 
dorsed by  Joseph  Maylin,  and  Thomas  Shields,  payable  in 
ninety  days ;  and  the  other  in  the  bank  of  Pennsylvania,  for 
$2300,  dated  the  29th  of  September,  1819,  payable  in  ninety 
days,  and  drawn  and  indorsed  by  the  same  parties.  Thomas 
Shields  died  intestate,  and  constituted  his  sons,  Thomas,  Robert, 
John,  and  David  Shields  his  executors.  Robert,  John,  and 
David  only,  proved  the  will,  and  obtained  letters  testamentary. 
Immediately  after  the  death  of  Thomas  Shields,  and  before  these 
notes  became  due,  a  committee  was  appointed  by  the  Baptist 
Church,  to  wait  upon  the  executors  and  the  bank,  in  order  to 
arrange  for  the  continuance  of  the  notes.  Mr.  Britton  states, 
that  he  first  called  upon  the  president  of  the  Bank  of  Pennsyl- 
vania, and  inquired  whether  there  would  be  any  difficulty  in  re- 
newing the  notes  in  that  bank.  Mr.  Norris  said,  that  he 
presumed  there  would  be  none ;  although  it  was  not  the  usual 
course  of  business  for  executors  to  obtain  discounts,  he  said, 
that  under  peculiar  circumstances  it  might  be  done,  and  that  he 
thought  this  was  such  a  case.  A  similar  answer  was  received 
from  Mr.  Campbell,  the  cashier  of  the  bank  of  Philadelphia. 
The  committee  then  waited  upon  the  executors.  Two  of  them, 
Thomas  and  David,  were  willing  to  renew  :  the  others  declined 
making  an  arrangement,  and  insisted  upon  the  payment  of  the 
notes  as  they  came  to  maturity.  In  this  conversation,  the  re- 
sult of  their  interview  with  the  officers  of  the  banks,  was  com- 
municated, by  the  committee,  to  the  executors.  Both  notes 
were  accordingly  protested,  and,  subsequently  paid  and  taken 
out  of  bank  by  the  executors.  The  plaintiffs  afterwards  pro- 
ceeded against  Regnault  and  Maylin,  the  previous  indorser  and 
drawer  of  the  notes ;  and  on  the  27th  of  November,  1822,  came 
to  a  compromise  with  them,  by  which,  on  the  receipt  of  three 
promissory  notes  for  $883.33,  each,  drawn  by  Maylin,  and  in- 
dorsed by  one  Edward  Thomas,  the  plaintiffs  exonerated  and 

69 


03  SUPREME  COURT  [PhiUuMphia, 

[Sliielda  and  others,  Executors  of  Shields,  v.  Owens.] 

di.scliargcd  Miivliu  and  Rcgnault,  reserving  their  rights  agiiingt 
the  church  and  the  .signers  of  the  guarantee.  In  order  to  fully 
understand  the  grounds  of  defence,  assumed  in  the  cause,  it  is 
necessary  again,  to  refer  to  a  period  anterior  to  the  death  of 
ThomavS  Shields.  The  Baptist  Church  was  indebted  ;  first,  to 
the  stockholders;  secondly,  for  the  princij)al  of  the  ground  rent 
upon  whicJi  the  church  was  built ;  thirdly,  U})on  mortgage ;  and, 
otherwise,  in  a  sura  near  $40,000.  Before  the  death  of  Mr. 
Shields,  the  members  were  desirous  of  paying  off  the  notes  upon 
which  he  was  indorser.  Mr.  Shields,  himself,  offered  to  sub- 
scribe $1000  towards  this  object,  if  an  exertion  was  made,  among 
the  members,  to  effectuate  its  success.  A  subscription  was 
set  on  foot  for  this  purpose,  and  a  considerable  amount  sub- 
scribed. In  pursuance  of  this  engagement,  and  while  on  his  death 
r*fi4l  ^^^^'  ^^^^■'  ®°  *^^Q  26th  of  November,  1819,  Mr.  Shields 
'-  ^  signed  an  agreement  to  pay  $1000  towards  the  liquida- 
tion of  these  notes,  stipulating,  however,  that  lie  should  not  be 
called  upon  to  pay  the  amount,  unless  the  whole  $4000,  due  on 
the  notes,  were  subscribed.  The  Avhole  sura  was  not,  however, 
raised  at  the  tirae  the  notes  became  due,  nor  at  any  time  af^-er- 
•wards.  Afler  the  death  of  Mr.  Shields,  and  l^efore  the  notes 
became  due,  a  society  was  formed,  called  '  The  Mite  Society/ 
whose  object  was  to  raise,  by  small  contributions  among  the 
members,  funds  to  meet  the  instalments  due  upon,  and  event- 
ually to  discharge  these  notes.  More  than  $1000  were  sub- 
scribed for  this  purpose.  In  consequence,  however,  say  the 
defendant's  witnesses,  of  the  refusal  of  the  plaintiffs  to  renew 
the  notes,  and  of  their  insisting  upon  their  payment,  the  efforts 
of  the  Mite  Society  were  arrested,  as  was  the  previous  subscrip- 
tion, towards  which  Mr.  Shields  was  a  subscriber  for  $1000. 
Those  who  subscribed,  seeing  their  efforts  likely  to  prove  abor- 
tive, refused  payment,  and  the  church  was  compelled  to  make 
an  assignment  for  the  use  of  its  creditors.  Mr.  Britton  attributes 
this  result  to  the  refusal  of  the  plaintiffs  to  renew,  and  believes, 
that  if  the  notes  had  gone  on,  funds  adequate  for  the  settlement 
of  them,  would  have  been  received  from  these  sources.  This 
witness  states  that  the  comraittee  argued  with  the  executors,  that 
they  could  run  no  risk  in  signing  these  notes,  as  they  were  not 
only  executors  but  heirs.  There  is  no  pretence  that  the  estate 
was  insolvent.  It  also  appears,  that  the  church  contributed  to 
the  payments  made  by  Maylin,  and,  that  this  was  known  to  the 
plaintiffs.  Such  appears  to  be  a  compendious  view  of  the  de- 
fendant's testimony.  The  plaintiffs,  by  way  of  rebutting  evi- 
dence, have  adduced  two  certificates  from  the  president  of  the 
Pennsylvania  Bank,  and  the  cashier  of  the  Philadelj)hia  Bank, 
which  have  been  read  by  consent,  the  object  of  which  is  to  show, 
70 


Dec.  29, 1828.]      OF  PENNSYLVANIA.  64 

[Shields  and  others,  Executors  of  SIiieMs,  v.  Owens.] 

that  it  is  not  the  general  practice  of  these  institutions  to  dis- 
count notes  drawn  and  indorsed  by  executors  in  their  official 
capacities.  These  gentlemen  have  also  been  examined  before 
you,  and  have  sustained  their  written  statements.  The  plain- 
tiffs have  also  adduced  a  notice,  given  by  them  to  the  trustees 
of  the  Baptist  Church,  upon  the  1st  of  April,  1820,  in  which 
they  offered  to  pay  their  father's  subscription  of  $1000,  towards 
liquidating  the  notes,  if  the  church  should  raise  the  balance  be- 
fore the  20th  of  the  ensuing  June,  and  that,  in  default  thereof, 
they  should  consider  themselves  discharged  from  all  obligation 
to  pay  the  subscription.  This,  however,  was  after  the  mischief 
was  done.  If  the  defendant's  witnesses  speak  correctly,  the 
notes  had  been  protested  the  December  preceding,  and  the  train 
of  disastrous  circumstances  which  followed,  had  all  occurred. 
The  church  has  l)een  sold  since  for  $3750,  subject  to  a  mortgage, 
and  a  ground  rent  of  $8000 ;  a  most  severe  sacrifice  indeed. 

"  In  order  to  enable  us  to  come  to  a  correct  conclusion  in  this 
controversy,  we  are  to  inquire,  what  is  the  nature  of  the  de- 
fendant's contract ;  has  it  been  complied  with,  and  if  nay,  are 
there  any  causes  *which,  according  to  the  principles  of  r*o~-\ 
laAV  and  equity,  will  exempt  him  from  responsibility,  for  *-  -■ 
or  on  an  account  of  such  breach.  First,  as  to  the  nature  of  the 
agreement  of  the  28th  of  July,  1817,  signed  by  the  defendant 
and  others.  It  is  a  contract  of  guarantee  or  indemnity.  The 
church  was  the  principal  debtor;  Regnault,  Maylin,  and  Shields, 
sureties,  and  the  signers  of  the  agreement  guarantees  of  those 
sureties.  Its  terms  are  explicit.  The  parties  to  it  are  bound 
for  the  default  of  the  church,  '  in  manner  and  time,  as  therein- 
after specified.'  The  manner  was  'that  the  parties  to  the  said, 
notes  (whether  drawer  or  indorsers)  should  contimie  to  the  end 
of  the  time  which  might  be  required  for  the  payment  of  the 
same.'  The  time  stipulated  for,  was,  that  the  notes  should  be 
paid  by  instalments  of  ten  per  cent,  per  annum,  to  be  paid  off 
in  ten  years.  A  surety  who,  if  a  court  of  justice  can  have 
favourites,  is  always  so,  is  merely  bound  by  the  precise  terms  of 
his  contract.  However,  the  convenience  of  a  modification  may 
be  to  the  party  secured,  or  however  desirable  it  may  become, 
from  a  change  in  circumstances,  the  surety  may  answer,  that  he 
never  entered  into  such  a  contract  as  that  prepared  to  be  substi- 
tuted for  his  agreement.  So,  in  the  case  before  us ;  the  death 
of  Thomas  Shields  in  no  resjiect  changed  the  nature  and  extent 
of  the  defendant's  responsibility.  It  remained  after  that  event 
as  before ;  a  contract,  that  the  Baptist  Church  should  extinguish 
the  original  debt  in  ten  years,  and,  at  the  rate  of  ten  per  cent. 
per  annum.  As  respects  this  head  of  the  cause,  it  is  immaterial 
whether  the  banks  would  or  would  not  have  continued  the  dis- 

71 


65  SUPREME  COURT  [PhUaddphia, 

[Shields  and  others,  Executors  of  Shields,  v.  Owens.] 

counts  upon  the  indorsement  of  the  executors.  If  immediate 
payment  was  coerced  from  the  plaintiffs,  the  defendant  was  an- 
swerable over  to  them,  only  on  the  terms  of  his  contract.  The 
plaintiffs  have  actually  conceded  this  pasition  by  bringing  their 
action  for  the  annual  instalments,  which  have  grown  due  since 
the  27th  and  29th  of  December,  1819.  If,  indeed,  the  banks  had 
refused  to  continue  the  discounts  upon  the  credit  of  the  plaintiffs, 
and,  in  conse^juence  of  this  refusal,  they  paid  the  notes,  the  de- 
fendant would  certainly  have  been  responsible  for  the  default  of 
the  church  in  paying  the  annual  instalments.  In  such  a  case, 
although  in  form,  the  notes  were  not  continued,  yet  the  substance 
of  the  contract  was  complied  with.  The  responsibility  would 
not,  in  such  a  state  of  things,  have  been  either  increased  or  varied. 
But,  whether  the  banks  would  or  would  not  have  continued  the 
discounts  upon  the  credit  of  the  plaintiffs  as  executors,  becomes 
material,  as  an  ingredient  in  another  view  of  the  case,  which  is 
now  to  be  considered.  This  question,  as  all  others  in  the  cause, 
which  are  pure  matters  of  fact,  are  for  your  decision.  But,  as- 
suming that  the  banks  would  have  continued  these  discounts,  the 
estate,  being  fully  adequate  for  their  payment  as  for  all  other 
demands  against  it,  has  the  refusal  of  the  plaintiffs  to  accept  the 
discounts,  and  their  demand  of  immediate  payment  from  the 
church,  followed,  as  it  was,  by  the  insolvency  of  the  church, 
r*fifi1  pi'oduced  any  and  what  legal  effect  upon  *the  obligation 
L  J  of  the  defendant's  contract  ?  For,  if  the  plaintiffs  have 
done  or  omitted  nothing  which  renders  it  against  equity  that 
they  should  recover,  the  fact  of  having  paid  the  whole  debt, 
and  of  not  being  reimbursed  by  the  church,  gives  them  an  un- 
doubted claim  to  recover  the  annual  instalments  due  at  the  time 
of  bringing  this  action.  It  is  a  well  settled  principle  of  law, 
that  the  creditor  has  no  right  to  increase  the  risk  or  vary  the 
contract  of  the  surety.  Beyond  his  specific  engagement  he  is 
never  bound.  '  Calculating,'  says  Chief  Justice  Kent,  '  upon 
the  extent  of  that  engagement,  he  is  not  supposed  to  bestow  his 
attention  upon  the  terms  of  the  transaction,  and  is  only  prepared 
to  meet  the  contingency,  when  it  shall  arrive',  in  the  mode  and 
time  presented  in  the  contract.'  So  strict  has  been  the  construc- 
tion of  the  contracts  of  sureties,  that  a  contract  to  indemnify  a 
mercantile  company  against  the  non-payment  of  a  customer,  has 
been  held  to  terminate  with  the  removal  of  one  of  the  partners, 
or,  when  given  to  one  individual,  to  terminate  upon  his  associ- 
ating himself  in  trade  with  another.  Nor,  when  given  to  a 
mercantile  company  of  several,  does  it  extend  to  survivors. 
Again,  a  contract  to  guaranty  A.,  if  he  furnishes  goods  to  B., 
will  be  of  no  avail  to  A.,  if  through  him,  and  upon  his  credit, 
the  goods  are  furnished  by  G. ;  nor  if  the  guarantee  is  given,  if 
72 


i)ec.  29, 1828.]      OF   PENNSYLVANIA.  (i6 

[Shields  and  others,  Executors  of  Shields,  v.  Owens.] 

a  greater  credit  is  allowed,  will  it  be  available  if  a  less  one  is 
given.  These  are  examples  of  the  strictness  of  construction 
given  to  the  terms  of  a  guarantee.  Where  there  is  no  difficulty 
as  to  the  extent  of  the  contract,  yet,  if  time  is  given  to  the  prin- 
cipal debtor,  by  the  creditor,  without  the  assent  of  the  surety, 
or  if  he  does  any  act,  varying  the  contract,  and  increasing  the 
risk  of  the  surety,  the  latter  is  discharged. 

*'  To  apply  these  principles  to  the  case  before  us.  First,  as  to 
the  construction  of  the  agreement  of  the  28th  of  July,  as  be- 
tween Thomas  Shields,  whose  name  is  attached  to  it,  and  the 
other  parties  to  it.  It  was  a  contract  that  INIr.  Shields  should 
not  call  for  payment  of  the  money  of  the  church  at  any  other 
time  or  manner  than  was  'therein  specified.'  Although  the 
church  was  always  responsible  to  the  drawers  and  indorsers  of 
the  notes,  in  the  event  of  their  being  called  upon  and  actually 
paying  the  notes,  yet  Thomas  Shields,  if  he  desired  to  retain 
his  claim  against  the  guarantees,  could  not  refuse  to  extend  the 
stipulated  credit  to  the  church,  nor  resist  an  immediate  pay- 
ment. There  would  be  no  mutuality  in  a  contract  whereby  a 
surety  guaranteed  the  payment  of  a  debt  to  the  creditor,  in 
regular  instalments,  if  the  creditor  could  immediately  after- 
wards proceed  against  his  debtor  for  the  whole  claim,  and  still 
retain  his  right  to  proceed  from  time  to  time  against  the  surety, 
if  he  failed  in  getting  payment  in  full.  If  this  could  be  allowed, 
such  would  be  the  case  here;  for  Britton  says,  the  church 
aided  Maylin  in  his  payraents,  and  the  plaintiffs  knew  it. 
Engagements  of  the  kind  alluded  to,  are  of  every  day's 
occurrence,  and  it  never  could  be  endured,  that  a  credi- 
tor, after  receiving  such  *a  security,  should,  after  r^nrj-i 
driving  his  debtor  to  insolvency  by  proceeding  at  once  ^  J 
for  his  whole  claim,  still  retain  the  right  to  call  upon  the  surety 
for  the  instalments  as  they  became  due.  The  universal  object 
of  entering  into  such  responsibilities,  is  to  give  the  principal 
debtor  a  chance  to  retrieve  his  shattered  fortunes.  The  effect 
of  proceeding  at  once  for  the  whole  arrear,  always,  if  allowed, 
makes  the  surety  pay  the  debt.  But  if  the  debtor  was  let  alone 
to  pay  the  debt  in  the  time  and  manner  for  which  the  surety 
has  bound  himself,  he  often  would  be  able  to  do  so.  This  iS  a 
calculation  which  enters  the  mind  of  every  prudent  man  who 
becomes  surety  under  such  circumstances. 

"  But  if  the  construction  we  have  given  to  this  contract  is 
questionable,  yet  the  evidence  discloses  facts,  which,  if  believed 
by  you,  exhibit  conduct  calculated  to  increase  the  risk  and 
vary  the  contract  of  the  sureties,  so  as  to  bring  this  case  within 
that  class  of  decisions  in  which  courts  of  equity  have  held  the 
surety  discharged.     We  will  not  again  recapitulate  them,  but 

73 


67  SUPREME  COUET  [Philadelphia, 

[Sliields  and  others,  Executors  of  Shields,  v.  Owens.] 

content  ourselves  with  saying,  that,  if  you  believe  from  the  evi- 
dence that  the  plaintiffs  could  have  renewed  their  notes,  but 
refused  to  do  so,  and  demanded  immediate  payment  by  the 
church :  that  in  consequence  of  such  refusal  and  demand,  the 
subscription  of  the  members,  and  the  contributions  of  Tlie  Mite 
Society  failed  ;  and  that  this  pressure  produced  the  insolvency 
of  the  church,  such  a  course  of  procedure  was  inconsistent  with 
the  rights  of  the  sureties,  and  operates  to  discharge  them  from 
all  liability  upon  their  agreement." 

The  jury  found  a  verdict  for  the  defendant,  agreeably  to  the 
charge  of  the  court,  and  the  record  having  been  removed  by 
writ  of  error  to  this  court,  the  following  errors  were  assigned. 

1.  That  the  court  erred  in  the  construction  of  the  agreement 
of  the  28th  of  July,  1817,  signed  by  the  defendant  and  others, 
and  regarding  it  as  a  contract  of  indemnity,  the  Baptist  Church 
the  principal  debtor.  Shields  and  others,  drawers  and  indorsers 
of  the  notes,  as  sureties,  and  the  signers  of  the  agreement 
merely  as  guarantees  of  those  sureties. 

2.  That  the  court  erred  in  considering  the  defendant  and  the 
other  signers  of  the  said  agreement  as  sureties  merely,  and  ap- 
plying to  them  the  principles  of  law  as  laid  down  in  their  opinion. 

3.  That  the  court  erred  in  stating  that  the  executors  of 
Thomas  Shields  were,  by  the  terms  of  the  said  agreement, 
bound  to  continue  or  renew  the  notes  after  his  death,  either  by 
drawing  or  indorsing  new  ones. 

4.  That  the  court  erred  in  charging  the  jury  "  that,  if  you 
believe,  from  the  evidence,  the  plaintiffs  could  have  renewed 
these  notes,  but  refused  so  to  do,  and  demanded  immediate  pay- 
ment by  the  church,  that  in  consequence,  such  refusal  and  de- 
mand, the  subscription  of  the  members,  and  the  contributions  of 
The  Mite  Society  failed,  and  that  this  pressure  produced  the  in- 
solvency of  the  church,  such  a  course  of  procedure  was  incon- 
r*fi«1  ^^^''^^'^^  *with  the  rights  of  the  sureties,  (meaning  the 
L  -•  defendant  and  the  other  signers),  and  operates  to  dis- 
charge them  from  all  liability  upon  their  agreement." 

J.  3L  Reed,  for  the  plaintiffs  in  error. 
,  1,  2,  3.  When  the  agreement  of  the  28th  of  July,  1817,  was 
entered  into,  the  parties  knew  that  the  banks  look  to  individual 
responsibility  alone,  and  are  not  in  the  habit  of  discounting 
notes,  drawn  or  indorsed  by  executors  as  such.  The  contract 
must,  therefore,  be  construed  with  reference  to  this  practice,  as 
it  never  could  have  been  the  intention  of  the  parties  to  stipu- 
late for  the  performance  of  an  act,  which  did  not  depend  upon 
themselves,  or  any  person  over  whom  they  had  any  control. 
The  contract  had  reference  to  individuals,  whom  it  was  known 
74 


Dee.  29,  1828.]      OF   PENNSYLVANIA.  68 

[Shields  and  others,  Executors  of  Shields,  v.  Owens.] 

the  banks  would  take,  and  not  to  executors  or  administrators, 
whom  it  was  known  they  would  not  take.  In  the  instrument, 
the  drawer  and  indorsers  are  universally  spoken  of  as  individ- 
uals, and  in  no  part  of  it,  is  there  anything  which  looks  like 
an  intention  to  impose  upon  their  representatives,  after  their 
death,  the  obliifation  of  renewing;  their  notes.  Circumstances 
migiit  have  occurred  even  in  the  lifetime  of  those  persons, 
which,  by  rendering  the  acts  they  had  agreed  to  perform  impos- 
sible, would  have  released  them  from  their  undertaking,  without 
affecting  their  right  to  resort  to  those  who  had  agreed  to  indem- 
nify them.  If  the  banks,  from  any  cause,  had  refused  to  renew 
the  notes,  or  if  the  charters  of  these  institutions  had  expired, 
as  that  of  the  Philadelphia  Bank  actually  did  in  1824,  though  it 
was  renewed ;  in  either  of  these  cases,  the  })Iaintiti*'s  testator 
could  not  have  complied  with  his  agreement ;  and  yet  it  is  obvi- 
ous, that  a  non-compliance  under  such  circumstances,  Avould  not 
have  been  a  forfeiture  of  his  right  to  call  on  the  signers  of  the 
agreement  as  often  as  the  payments  of  ten  per  cent,  became 
due.  The  death  of  the  indorser  is  an  event  of  the  same  ciiar- 
acter,  which  put  it  out  of  the  power  of  the  testator  to  perform 
his  agreement,  and  so  it  must  have  been  considered  by  the 
parties;  for,  when  the  well-known  practice  of  the  banks  forbade 
a  renewal  by  executors,  it  cannot  be  supposed  a  contract  was 
entered  into  in  contemplation  of  so  improbable  an  event,  as 
that  the  banks  would  consider  this  to  be  a  case  of  so  peculiar  a 
nature,  as  to  induce  them  to  contravene  their  established  rule. 
It  is  true,  that  in  many  cases  executors  are  bound,  though  not 
named  :  but  it  is  not  always  so.  They  are  not  bound  where  the 
contract  is  for  the  mere  personal  act  of  the  testator,  which  he 
alone  can  perform,  and  which,  therefore,  death  puts  an  end  to. 
2  Bac.  Ab.  69  ;  Govt.  P.  3  Vin.  Ab.  381 ;  3  Bac.  Ab.  95 ;  Cro. 
Eliz.  552 ;  3  Com.  Dig.  258 ;  Govt.  c.  1  ;  Cooke  v.  Colcraft,  3 
Wils.  386  ;  2  Wm.  Bl.  856,  s.  c. ;  The  Commonwealth  v.  King, 
4  Serg.  &  Hawle,  109.  The  contract  in  the  present  instance 
was  of  this  description ;  no  one  could  perform  it  but  Thomas 
Shields  himself.  It  was  to  indorse  his  name  upon  the  notes. 
For  the  executors  to  have  indorsed  them,  would  have  been  out 
of  *the  usual  course  of  their  duty ;  and  if  it  had  been  rxtpq-i 
intended  they  should  do  so,  that  intention  would  have  L  -^ 
been  declared.  They  Avere  under  no  obligation  to  renew  the 
notes  either  in  their  official  or  individual  capacities.  If  they 
had  done  so,  it  would  have  been  a  voluntary  act  merely. 

4.  If  the  preceding  argument  be  sound,  there  is  error  in  the 
fourth  specification  also.  If  it  was  not  the  duty  of  the  execu- 
tor's to  renew  the  notes,  it  was  of  no  importance  in  a  legal  point 
of  view,  whether  or  not  their  refusal  produced  the  insolvency 

75 


69  SUPREME   COURT  [Philadelphia, 

[Shields  and  others,  Executors  of  Shields,  v.  Owens.] 

of  the  cliurch,  and  all  those  disastrous  consequences  which  are 
said  to  have  ensued. 

(The  court  having  intimated  that  this  point  was  the  same  in 
substance  as  those  which  preceded  it,  and  that  the  only  ques- 
tion was,  whether  the  contract  was  terminated  by  the  death  of 
Thomas  Shields,  the  argument  was  pressed  no  further.) 

Gilpin  and  J.  li.  Ingersoll,  for  the  defendant  in  error. — The 
object  the  parties  had  in  view  in  entering  into  the  agreement, 
which  is  the  foundation  of  this  suit,  was,  by  giving  tinie  to  the 
church,  to  enable  it  gradually  to  pay  off  its  debts.  It  consti- 
tuted a  partnership  of  liability  between  the  signers  and  the 
plaintiff's  testator,  who  could  not  call  upon  those  who  liad  un- 
dertaken to  secure  him,  without  performance  of  liis  part  of  the 
contract.  They  nmtually  agree  to  become  responsible,  upon 
certain  terms,  which  formed  a  condition  precedent.  The  con- 
dition was,  that  Shields  should  not  call  upon  the  signers  of  the 
agreement  in  less  than  ten  years,  with  the  further  condition 
that  he  should,  during  that  period,  renew  the  notes.  The  em- 
barrassed situation  of  the  church,  called  for  such  an  arrange- 
ment, W'hich,  if  it  had  been  carried  into  full  effect,  would  have 
eventuated  in  the  payment  of  the  debt,  and  the  relief  of  the 
corporation.  The  agreement  was  entered  into  solely  with  this 
view,  and  the  parties  expressly  stipulated  for  the  terms  and 
manner  in  which  they  were  to  become  bound.  In  no  other 
way,  therefore,  can  they  be  bound.  This  engagement  was 
strictly  an  engagement  of  suretyship,  and  is  to  receive  the  con- 
struction uniformly  given  to  engagements  of  such  a  nature.  It 
cannot  be  extended  by  implications  beyond  its  express  terms, 
Miller  v.  Stuart,  9  Wheat,  703.  The  undertaking  of  the  signers 
of  the  agreement  was  to  pay,  if  the  church  did  not,  provided 
ten  years  were  allowed  to  the  church,  and  provided  the  notes 
were  renewed  in  the  mean  time.  Time  was  of  the  first  impor- 
tance to  them,  in  order  to  give  full  scope  to  the  efforts  of  "  The 
Mite  Society,"  and  to  all  other  arrangements  which  had  been 
made,  or  might  be  made,  to  promote  the  object.  They  there- 
fore meant  to  guard  themselves  against  being  called  upon  with- 
in the  period  prescribed.  In  this  state  of  things,  what  was  the 
effect  of  the  death  of  Shields  ?  The  debt  to  the  banks  remained. 
The  obligation  of  the  thirty  to  see  that  debt  paid  in  exoneration 
of  Maylin,  Regnault  and  Shields,  also  remained.  The  only 
r^«^-j  difference  wa.s,  that  the  executors  of  Shields  *were  to 
*-  -•  take  his  place.  He  had  provided  for  the  payment  of  the 
debt,  in  a  certain  mode ;  this  mode  his  executors  might  have 
adopted  or  rejected ;  but  they  could  not  adopt  it  in  part,  and 
reject  it  in  part.  They  could  not  derive  a  benefit  from  the  con- 
76 


Dee.  29,  1828.]      OF   PENNSYLVANIA.  70 

[Shields  and  others,  Executors  of  Shields,  v.  Owens.] 

tract,  without  performing  their  own  part  of  it.  They  could  not 
repudiate  it,  as  respected  themselves,  and  at  the  same  time  claim 
under  it.  They  suffered  the  notes  to  be  protested ;  in  conse- 
quence of  which,  the  credit  of  the  church  was  destroyed  and 
ruin  followed ;  and  they  now  ask  to  enforce  this  contract  for 
their  own  benefit,  against  those,  whom  by  their  own  acts  they 
have  injured.  Whether  or  not  the  banks  would  have  accepted 
the  indorsement  of  the  executors,  is  not  material,  because  the 
engagement  was  for  a  renewal ;  and  the  defendant  was  not 
bound,  unless  the  notes  were  renewed,  at  all  events.  But  specu- 
lative argument  is  superfluous,  because  the  fact  was,  and  the 
jury  have  so  found  it,  that  the  notes  might  have  been  renewed. 
It  was  one  of  those  peculiar  cases,  in  which  the  banks  would 
have  received  the  indorsement  of  the  executors ;  and  this  fact 
was  communicated  to  them  by  the  committee,  when  they  were 
applied  to  on  the  subject.  The  defence,  therefore,  now  set  up, 
was  evidently  an  after  thought.  The  contract  was  by  no  means 
of  such  a  nature,  that  no  one  could  perform  it  but  Thomas 
Shields  himself.  It  was  not  necessary  that  he  should,  with  his 
own-  hand,  affix  his  name  to  the  notes.  The  responsibility  of 
his  estate  was  the  object.  If  from  illness,  or  any  other  cause, 
he  had  been  deprived  of  the  use  of  his  hands,  it  will  hardly  be 
pretended  that  he  might  not  have  indorsed  through  the  instru- 
mentality of  another  person,  and  that  if  he  had  omitted  to  do 
so,  he  would  have  been  released  from  his  obligation,  while  his 
sureties  remained  bound.  So  on  his  death,  his  executors  rep- 
resenting him,  might  have  indorsed  the  notes  instead  of  him. 
They  were  bound  to  perform  the  contract  of  their  testator, 
whether  named  or  not,  and  an  action  might  have  been  sustained 
against  them  for  their  refusal.  Cro.  Eliz.  553  ;  1  Wash.  Virg. 
Eep.  308  ;  Toller  on  Exrs.  59,  60.  That  Shields  himself  con- 
sidered the  contract  binding,  after  his  dissolution,  is  evident, 
from  the  anxiety  he  evinced  on  his  death  bed  to  have  the  busi- 
ness settled ;  doubtless,  anticipating  trouble  to  his  children  if  it 
were  not.  There  was  nothing  in  the  way  of  a  perfect  fulfilment 
of  the  contract,  and  ultimate  payment  of  the  debt,  in  the  man- 
ner contemplated,  but  the  sullen  and  obstinate  refusal  of  tlie 
plaintiffs  to  do  their  duty.  If  the  judge  had  said,  in  general 
terms,  that  the  death  of  Thomas  Shields  made  no  difference,  he 
would  not  have  been  wrong ;  but  he  never  said  so,  except  in 
connection  with  the  facts  of  the  case,  which  he  left  to  the  jury ; 
and  this  court  have  often  decided  that  the  whole  charge  must  be 
taken  together,  and  not  any  one  part  by  itself. 

The  opinion  of  the  court  was  delivered  by 

Tod,  J. — There  are  certain  rules  of  equity  which  deal  favour- 

77 


70  SUPREME  COURT  [PhUaddpUa, 

[Shields  and  others,  Executors  of  Shields,  ».  Owens.] 

ably  with  the  contracts  of  sureties ;  yet  those  rules  do  not  seem 
p^-,-|  to  us  *strictly  to  apply  to  the  present  case.  Shields,  the 
L  J  testator,  had  his  name  upon  the  notes,  as  indorser ;  but 
he  did  not  receive  the  money,  nor  any  part  of  it,  nor  was  the 
original  loan  upon  his  credit,  nor  was  he  in  any  manner  bound 
until  induced  to  l)ecome  indorser  by  a  written  stipulation  of  in- 
demnity. As  far  as  one  may  be  called  a  surety,  who,  without 
personal  interest  or  prospect  of  gain  to  himself,  lends  his  credit, 
and  becomes  bound  for  the  debts  of  others,  so  far  it  would  ap- 
pear, that  Shields,  the  testator  himself,  stood  as  a  surety,  rather 
than'  as  a  principal.  Shortly,  the  case  is — The  Baptist  Church 
in  Sansom  Street^  being  in  debt  about  forty  thousand  dollars, 
and  about  six  thousand  dollars  of  it  being  due  to  the  Philadel- 
phia Bank  and  the  Bank  of  Pennsylvania,  on  loans  obtained  some 
years  before,  not  upon  the  credit  of  the  corporation  but  upon 
the  notes  of  Mr.  Maylin  and  Mr.  Regnault,  and  the  banks  be- 
coming dissatisfied  with  the  security,  and  refusing  to  renew  with- 
out an  additional  indorser,  Mr.  Shields,  the  testator,  agreed  to 
become  this  additional  indorser,  upon  a  previous  written  con- 
tract of  indemnity,  signed  by  Shields,  himself,  and  by  thirty 
other  members  of  the  congregation,  among  the  rest  by  Mr. 
Owens,  the  defendant.  Upon  that  contract  the  present  sjiit  is 
brought :  (His  Honour  here  stated  the  contents  of  the  agree- 
ment on  the  28th  of  July,  1817.) 

According  to  this  agreement.  Shields,  the  testator,  continued 
to  renew  his  indorsements  at  intervals  of  ninety  days,  as  long 
as  he  lived,  Avhich  was  two  or  three  years.  At  his  death  the 
two  debts  had  been  diminished  by  payments  to  about  one  half. 
His  four  sons,  the  plaintiffs,  were  left  devisees  of  his  estate,  and 
executors  of  his  will.  They  were  applied  to  on  the  part  of  the 
congregation,  to  renew  and  continue  the  indorsement  of  the 
notes.  Two  of  them  were  willing  and  two  refused.  There  was 
some  uncertainty  of  proof  whether  the  bank  would  take  an  in- 
dorsement by  men  in  the  character  of  executors ;  but  that  mat- 
ter was  left  as  a  fact  to  the  jury,  and  I  take  it  to  be  settled  by 
the  verdict,  that  the  banks  would  have  accepted  such  indorse- 
ment. The  notes  were  protested,  and  the  executors  not  waiting 
to  be  sued,  paid  the  money  and  took  up  the  notes ;  and  after 
some  years  they  bring  this  suit  against  Mr.  Owens,  claiming 
from  him  his  contribution ;  viz.,  his  share  of  the  instalments  of 
ten  per  cent,  due  at  the  time  of  commencement  of  the  action. 

The  defence  is  founded  upon  the  words  of  the  agreement, 
which,  it  is  argued,  expressly  require  Shields,  the  testator,  and 
of  course  his  representatives,  to  continue  the  indorsements,  and 
renew  them  to  the  end  of  the  ten  years,  and  that  the  executors, 
by  paying  oif  the  notes  instead  of  renewing  them,  and  by  be- 
78 


Bee.  29,  1828.]     OF   PENNSYLVANIA.  71 

[Shields  and  otiiers,  Executors  of  Shields,  v.  Owens.] 

coming  themselves  the  creditors  in  lieu  of  the  banks,  have  for- 
feited their  indemnity  and  all  their  rights  to  the  ten  per  cent, 
instalments.  Now  I  do  not  understand  such  to  be  the  right 
construction  of  the  agreement.  Manifestly  the  only  object  was 
to  get  credit,  to  gain  a  prolonged  time  of  *payment,  to  r^Yon 
enable  the  congregation  to  pay  oif  these  debts  gradually.  •-  -■ 
The  banks  were  no  parties  to  the  instrument.  It  was  not  for 
their  profit.  Tlie  notes  were  transferable  property,  and  known 
to  be  so  by  the  contributors.  In  substance  they  have  been  fairly 
and  legally  transferred  to  these  executors ;  and  by  the  transfer 
no  conceivable  injury  is  done  to  the  congregation,  or  to  the  signers 
of  the  indemnity,  unless  it  is  an  injury  to  their  estates  or  to  their 
credit  to  owe  money  to  individuals  rather  than  to  a  banlc,  and 
to  pay  six  per  cent,  interest  for  it  rather  tlian  the  bank  interest 
of  nearly  seven  per  cent.  According  to  the  true  intent  and 
meaning  of  the  paper,  I  should  say  that  Sliields,  the  testator 
himself,  by  paying  oif  the  notes  at  any  time,  had  he  been  able, 
would  not  thereby  have  lost  his  indemnity,  provided  that  in  con- 
sequence he  demanded  nothing  more  than  the  an'nual  instalments 
from  the  signers.  But  we  do  not  decide  that  point.  Tlie  tes-, 
tator  did  not  pay.  He  continued  the  indorsement  while  he 
lived.  He  could  do  it  without  much  inconvenience.  But  the 
case  seems  very  different  as  to  the  executors.  We  are  all  of 
opinion  they  took  the  only  fair  and  practical  mode  of  perform- 
ing their  father's  contract,  by  paying  the  notes,  taking  them  up 
and  waiting  for  the  yearly  instalments  for  their  reimbu_rsement. 
How  they  and  the  other  parties  to  the  notes  could  be  able,  con- 
sistently with  the  rules  of  law  or  convenience,  to  get  along:  for 
a  series  of  years,  binding  by  indorsements  every  ninety  days, 
not  themselves  but  the  estate  of  a  man  deceased,  is  a  difficulty 
which  need  not  be  settled,  because  the  law  is  clear  that  execu- 
tors having  assets,  giving  a  note  for  a  debt  due  from  their  tes- 
tator's estate,  though  they  expressly  name  tliemselves  executors 
in  the  contracit,  do  not  thereby  bind  their  testator's  estate;  but 
they,  themselves,  are  bound  personally.  Goyer  v.  Smith,  1 
Dall.  347  ;  Toller's  Law  of  Executors,  464.  Therefore,  by 
indorsing,  here  would  have  been  six  indorsers  instead  of  three, 
and  the  executors  liable  personally  for  the  default,  not  only  of 
the  two  original  indorsers,  but  of  each  other. 

It  is  denied  by  the  plaintiff's  counsel,  that  the  engagement  by 
the  testator  to  lend  his  credit,  is  that  sort  of  contract  which  can 
be  legally  binding  upon  his  representatives ;  being  but  a  mere 
personal  undertaking.  Without  entering  into  that  inquiry,  it 
is  certain  that  the  contribution  promised  by  Owens  and  the 
rest,  being  ccmditional,  the  condition  must  be  substantially  per- 
formed somehow  before   the   indemnity  can    be   claimed.     We 

79 


72  SUPREME  COURT  [Philadelphia, 

[Shields  and  others,  Executors  of  Shields,  v.  Owens.] 

think,  that  in  substance,  the  condition  has  been  performed  by 
the  executors. 

In  this  court  and  in  the  court  below,  tlic  cause  lias  been  placed 
partly  on  the  ground  of  injury  done  by  the  plaiutiifs,  by  not 
only  refusing  to  indorse,  but  by  demanding  immediate  repay- 
ment of  the  money  to  them.  Some  })roof  was  given  that  the 
conduct  of  the  plaintiffs  stopped  certain  payments  which  would 
have  been  made  by  thq  members  of  the  church,  and  was  perni- 
cious to  the  corporation.  Upon  the  credit  which  the  jury  might 
think  fit  to  give  to  that  evidence,  the  cause  was  put,  in  part  at 
rj^-o-j  least,  by  the  charge  of  the  court.  *It  appears  to  us, 
L  -•  that  the  plaintiffs'  demand  of  the  money,  if  made  upon 
the  corporation,  was  frivolous  ;  if  upon  the  signers  of  the  indem- 
nity, before  the  instalments,  or  some  of  them,  had  become  paya- 
ble, it  was  nugatory.  Notwithstanding  the  demand,  the  execu- 
tors wisely  forbore  to  sue ;  and  whatever  injury  has  followed, 
seems  to  have  been  produced  by  a  cause  too  small  for  the  law  to 
take  cognizance  of.  Upon  the  whole,  our  opinion  is,  that  there 
is  error,  and  that  the  judgment  be  reversed,  and  a  venire  facias 
de  novo  awarded. 

Judgment  reversed,  and  a  venire  faeias  de  novo  awarded. 


[Philadelphia,  December  29, 1828.] 

Freytag,  Esq.,  far  Himself  and  Others,  against  Anderson. 

IN  ERROR. 

To  entitle  a  landlord  to  demand  from  his  tenant  security  for  the  payment  of 
three  months'  rent,  or  a  surrender  of  the  possession  of  the  premises,  under  the 
act  of  the  25th  of  March,  1825,  it  is  not  sufficient  that  the  tenant  has  removed 
part  of  his  goods,  without  leaving  sufficient  to  secure  the  payment  of  three 
months'  rent,  while  he  himself  remains  in  possession  of  the  premisses. 

To  give  the  justices  jurisdiction  under  this  act,  the  removal  of  the  lessee  is 
necessary. 

Oi!^  a  writ  of  error  to  the  court  of  Common  Pleas  of  Philadel- 
phia county,  it  appeared  that  the  proceedings  in  this  case  arose 
under  an  Act  of  assembly,  passed  the  25th  day  of  March,  1825, 
entitled,  "  A  supplement  to  the  act,  entitled,  an  act  for  the  sale 
of  goods  distrained  for  rent,  and  to  secure  such  goods  to  the 
persons  distraining  the  same,  for  the  better  security  of  rents,  and 
for  other  purposes  therein  mentioned,"  the  provisions  of  which 
are  confined  to  the  city  and  county  of  Philadelphia. 

Michael  Freytag,  for  himself  and  others,  on  the  20th  day  of 
May,  1826,  required  Henry  Anderson,  by  a  written  notice,  to 
give  security  for  three  months'  rent  in  five  days,  for  the  occu- 
80 


Dec.  29, 1828.]       OF   PENNSYLVANIA.  73 

[Freytag,  Esq.,  for  himself  and  others,  v.  Anderson.] 

pancy  of  a  house,  or  to  give  him  peaceable  possession,  ou  or 
before  the  26th  day  of  May,  1826.  Uenry  Anderson  not  com- 
plying with  the  terras  of  this  notice,  Michael  Freytag,  on  the 
27th  day  of  May,  1826,  made  an  affidavit  before  two  justices  of 
the  peace  of  the  county  of  Philadel])hia,  that  Henry  Anderson 
had  then  possession,  as  tenant  from  year  to  year,  of  a  certain 
house  situated  in  Plumb  Street,  in  Southwark ;  that  he  had  no 
goods  or  personal  property  on  the  premises,  sufficient  to  satisfy 
a  quarter's  rent ;  but  that  nearly  all  had  been  removed ;  and 
that  he  had  demanded  security  from  Henry  Anderson,  fur  the 
payment  of  three  months'  rent,  or  peaceable  possession  of  the 
premises.  In  consequence  of  this  affidavit,  the  justices  on  the 
same  day,  issued  their  summons  to  *Heury  Anderson,  to  r^r-^-i 
appear  before  them  on  the  3d  day  of  June  next,  to  answer  L  -■ 
the  complaint  of  Michael  Freytag  and  others,  "for  having  his  goods 
removed  from  the  premises,"  wliich  he  then  occupied  as  tenant 
of  the  said  Michael  Frevtao;  and  others,  "  havino;  refu.sed  to  yive 
security  for  three  months'  rent,  or  to  deliver  up  possession  of 
the  same,  on  due  notice."  Such  were  the  words  of  the  summons. 
On  the  last  mentioned  day,  the  parties  appeared  before  the  jus- 
tices, when  the  case  Mas  continued,  till  the  8th  day  of  June,  on 
which  day  the  defendant  only  appeared,  and  judgment  was  ren- 
dered against  him,  "  that  the  premises  occupied  by  him,  should 
forthwith  be  delivered  up  to  the  plaintiff."  On  the  9th  day  of 
June,  a  writ  of  possession  was  issued,  returnable  on  the  13th,  in 
wliich  it  was  again  stated,  that  Henry  Anderson,  a  lessee  for 
years  of  Michael  Freytag,  "  not  having  sufficient  goods  and 
chattels  on  the  premises  leased,  to  secure  three  months'  rent,  had 
refused  to  give  security  for  the  payment  thereof  in  five  days 
after  demand  of  the  same  in  writing,  and  had  also  refused  to  de- 
liver up  })ossession  of  the  premises;  therefore  we  command,  &c." 
A  writ  o^  certiorari  was  afterwards  issued  to  the  two  justices  of 
the  peace,  by  the  Court  of  Common  Pleas  of  Philadelphia  county, 
by  which  the  proceedings  were  brought  before  that  court,  and 
ou  the  22nd  day  of  January,  1827,  on  a  hearing,  the  judgment 
of  the  justices  was  reversed  ;  and  on  this  judgment  of  the  Court 
of  Common  Pleas,  the  case  came  before  this  court  by  a  writ  of 
error. 

E.  Ingersoll,  for  the  plaintiff  in  error. — The  question  is, 
whether  to  support  proceedings  under  the  act  of  the  25th  of 
March,  1825,  it  is  necessary  that  the  tenant  him.self  should  have 
actually  removed  from  the  premises?  What  the  fact  was,  as  to 
removal,  we  do  not  know.  The  affidavit  states  all  that  the  law 
requires,  and  the  justices  have  given  their  judgment  upon  the 
facts  submitted  to  them.     This,  it  was  clearly  the  intention  of 

VOL.  I.— 6  81 


74  SUPREME  COURT  [P/dladelpkia, 

[Freytag,  Esq.,  for  himself  and  others,  v.  Anderson.] 

the  law  to  leave  to  the  justices,  and  it  is  veiy  proper  it  should 
be  so.  The  question  of  removal  is  often  one  of  great  nicety, 
particularly  in  the  country,  where  the  movements  of  a  tenant 
cannot  easily  be  observed.  A  removal  of  the  person,  is  not  re- 
quired by  law,  to  sanction  these  proceedhigs.  If  the  goods, 
which  are  all  that  constitute  a  home,  and  furnish  a  security  for 
the  rent,  be  taken  away,  it  is  a  removal  witiiin  the  scoi>e  of  the 
law.  If  the  evidence  given  to  the  justices,  appeared  upon  the 
record,  and  showed  no  removal,  there  would  be  some  foundation 
for  the  other  side  of  the  case ;  but  nothing  of  that  sort  appears, 
and  as  the  case  was  within  the  jurisdiction  of  the  justices,  and 
they  have  given  a  judgment  upon  a  matter  they  were  comi>ctent 
to  decide  upon,  that  judgment  ought  to  stand;  and  the  Court  of 
Common  Pleas  was  wrong  in  reversing  it. 

I.  Norris,  for  the  defendant  in  error. — The  second  section  of 
the  act  requires  an  actual  removal.  The  doubt  arises  from  the 
disjunctive,  or  shall  refuse,  being  used  instead  of,  and  shall. 
Or  may  be  construed,  and  1  Yeates,  319.  White  v.  The  Com- 
p-^-c-.  monwealth,  *1  Serg.  &  Rawle,  141.  The  intention  of  the 
L  -•  act  is  clear,  from  the  latter  part  of  the  section  where 
the  facts  to  be  proved  are  stated  :  "  and  if  it  shall  appear  that 
the  lessee  has  removed,"  &c.  The  spirit  and  meaning  of  the  act 
require  a  removal  in  fact.  The  old  law,  (act  of  1772),  only 
provides  for  the  determination  of  the  lease.  The  mischief  was, 
malicious  tenants  leaving  the  premises  vacant,  and  refusing  to 
give  up  possession.  The  remedy  is  sensible  and  judicious  :  the 
tenant  has  the  option  to  leave  sufficient  goods  on  the  premises 
to  secure  a  quarter's  rent,  or  to  give  security  for.  it,  if  he  re- 
fuses to  deliver  up  possession  when  he  has  removed.  The  legis- 
lature did  not  intend  to  impose  a  new  burden  on  tenants.  The 
act  speaks  of  the  removal  of  the  lessee,  which  is  a  removal  of 
the  person.  If  there  is  a  removal  in  fact,  but  a  colourable  and 
fraudulent  continuance  in  possession,  it  is  a  question  of  fact,  to 
be  decided  by  the  justices. 

This  is  a  new  mode  of  procedure  unknown  to  the  common 
law.  It  does  not  give  a  trial  by  jury  in  any  instance.  The 
rule  laid  down  under  the  act  of  1772,  by  Gibson,  J.,  in  Blash- 
ford  V.  Duncan,  2  Serg.  &  Rawle,  486,  is  sound,  and  equally  ap- 
plicable here  :  leave  nothing  to  construction.  Tlie  record  then 
does  not  show  a  removal  of  the  tenants.  Everything  required 
by  the  act  must  appear  on  record.  Fahnestock  v.  Fausteuhauer, 
5  Id.  174. 

Reply. — It  is  not  necessary  that  the  justices  should  state  on 
the  record  all  the  facts.     Under  the  old  act  of  1772,  it  is  neces- 
82 


Dec.  29, 1828.]       OF  PENNSYLVANIA.  75 

[Freytag,  Esq.,  for  himself  and  others,  v.  Anderson.] 

sary  that  the  inquisition  should,  for  the  guidance  of  the  sheriff, 
who  is  to  execute  the  writ  of  possession.  But  here,  the  tribunal 
that  decides,  issues  the  writ.  In  a  jury  trial,  all  the  necessary 
facts  must  be  proved  to  the  jury,  but  they  are  not  found  and 
entered  on  record.  The  act  does  not  require  that  all  the  facts 
should  be  entered  on  record.  Two  witnesses,  the  record  states, 
were  examined ;  the  presumption  is,  that  they  proved  the  neces- 
sary facts.  Every  presumption  should  be  made  in  favour  of  the 
proceedings  of  the  justices. 

The  opinion  of  the  court  was  delivered  by 

Smith,  J. — The  case  appears  to  this  court,  to  be  one  clear  of 
difficulty.  The  act  provides  for  a  case,  where  a  tenant  or  lessee 
for  a  term  of  years  in  the  city  and  county  of  Philadelphia,  with 
intent  to  defraud  his  landlord,  removes  from  the  demised  prem- 
ises, and  does  not  leave  sufficient  property  or  goods  to  pay  at 
least  three  months'  rent,  or  refuses  to  give  security  for  the  pay- 
ment of  the  rent,  and  to  deliver  up  the  possession  of  the  prem- 
ises; in  which  case  the  act  gives  a  remedy.  But  the  case  before 
us  is  not  within  the  act ;  for  the  affidavit,  warrant,  and  record  of 
the  proceedings  do  not  state,  either  that  the  defendant  had 
removed  his  goods,  with  intent  to  defraud  his  landlord,  or  that 
he  is  not  in  actual  possession,  or  that  he  has  removed  from  the 
premises,  without  leaving  sufficient  property  thereon  to  secure 
the  payment  of  at  least  three  *months'  rent ;  but  it  is  r*7/^-i 
assumed,  that  a  lessee  or  tenant,  who  has  not  sufficient  ■-  -' 
property  to  pay  the  rent,  is  within  the  act,  although  he  may  not, 
or  has  not  removed  his  family  or  goods  with  a  fraudulent  intent, 
and  although  he  continues  in  full  and  complete  occupancy  and 
possession  by  himself  and  family,  and  has  on  the  premises  all  his 
personal  property.  This  construction  given  by  the  justices  to 
the  act  of  assembly  is  wrong,  and  the  Court  of  Common  Pleas 
were  right  in  reversing  their  judgment.  The  words  in  the  act, 
"  If  any  lessee  shall  remove  from  such  premises,"  run  through 
the  whole  act,  and  this  fact  of  removal  must  appear  to  the  jus- 
tices, and  is  necessary  to  give  them  jurisdiction.  A  lessee  or 
tenant  who  removes,  and  does  not  leave  property  sufficient  to 
pay  the  rent,  or  give  security  for  the  payment  thereof,  if  re- 
quired, is  within  the  provisions  of  the  act ;  but  a  lessee  or  tenant 
who  continues  in  possession,  who  neither  removes  himself  nor 
his  goods,  is  not  within  the  same.  The  judgment  of  the  Court 
of  Common  Pleas  is  therefore  affirmed. 

Judgment  affirmed. 
83 


76  SUPREME  COURT  IPhUaddphia, 


[Phtladelphia,  I>ecembeb  29, 1828.] 

In  the  Matter  of  the  Appeal  of  John  Torr  and  others, 
Administrators  of  Josiah  Torr,  deceased. 


On  a  certiorari,  from  this  court  to  the  Orphans'  Court,  to  remove  the  record, 
the  original  record  must  be  returned. 

John  Toim  and  others,  admiuistrators  of  Josiah  Torr,  appealed 
to  this  court,  from  a  decree  of  the  Orphans'  Court  of  Philadel- 
phia county,  in  relation  to  their  accounts.  In  conformity  with 
the  practice,  a  certiorari  had  been  issued  to  bring  up  the  record; 
but  the  clerk  of  the  Orplians'  Court  declined  sending  up  the 
original  papers  in  liis  office,  which  were  voluminous,  offering  to 
make  copies  of  them,  upon  payment  of  the  fees,  for  so  doing, 
which  he  insisted  he  had  the  right  to  do.  On  motion  of  Wheeler, 
for  the  appellants,  a  rule  was  granted,  upon  the  clerk,  to  return 
the  original  papers,  or  sliow  cause  why  an  attachment  should 
not  issue  against  him,  with  the  view  of  obtaining  the  direction 
of  the  court,  as  to  the  course  to  be  pursued,  in  such  cases,  by 
the  officer. 

Upon  the  return  of  the  rule,  cause  was  shown  on  behalf  of 
the  clerk  of  the  Orphans'  Court. 

Wheeler,  in  support  of  the  rule. — The  certiorari  issues  to 
bring  up  the  record  itself.  2  Dall.  190.  The  appeal  only  re- 
moves the  cause.  The  11th  section  of  the  act  creates  the  Su- 
preme Court,  (1  Sm.  L.  139,)  and  gives  power  to  issue  certioi'a/ns. 
r*77"l  Co^d.  Gen.  90,  is  *an  authority,  that  the  cei-tioraH 
*-  -<  removes  the  record  itself,  out  of  the  inferior  court,  and 
1  Bac.  Ab.  573 ;  F.  N.  B.  548 ;  Lil.  Ent.  252,  353,  are  to  the 
same  point. 

Ingraham,  contra. — It  is  perfectly  true,  that,  upon  a  cer- 
tiorari, the  record,  itself,  is  returned,  in  the  condition  in  which 
it  was  when  the  writ  came  to  the  court  below,  and  everything 
done  in  the  court,  between  the  test  and  return  of  it ;  (1  Tid, 
407,  8th  Edit.)  that  is  to  say,  a  complete  transcript  of  the  rec- 
ord below,  and  not  the  mere  substance  of  it.  And,  the  safety 
of  important  papers,  filed  in  the  Orphans'  Court  office,  requires, 
that  such  should  be  the  practice ;  for  they  are  often  lost  or  mis- 
laid, and  titles  thus  rendered  defective.  In  point  of  fact,  the 
original  papers  are  never  sent  up  in  England.  Chief  Justice 
Holt,  in  Rex  v.  North,  2  Salk.  565,  says,  "  It  is  an  error  in 
84 


Z)ee.29,1828.]       OF   PENNSYLVANIA.  77 

fin  the  Matter  of  Appeal  of  John  Torr  and  others,  Administrators  of  Josiah 

Torr,  deceased.] 

the  clerks  in  London,  that,  upon  a  certiorari,  they  return  only 
a  transcript,  as  if  the  record  remained  below ;  for,  in  C.  B., 
though  they  do  not  return  the  very  individual  record,  yet,  the 
transcript  is  returned  as  if  it  were  the  record ;  and  so  it  is  in 
judgment  of  law ;  and  it  is  in  this  sense,  that  a  return  of  the 
*  record  itself,'  is  to  be  understood,  when  used  by  tiie  writers  of 
books  of  practice,  as  is  evident  from  the  marginal  note  of  this  very 
case,  which  is,  '  upon  a  certiorari  the  very  record  is  returned.' " 

Per  Cueiam. — In  every  sort  of  appeal,  whether  with,  or 
without  certiorari,  the  practice  is  to  send  up  the  original  papers, 
as  far  as  is  practicable.  The  dockets  cannot  be  removed,  and 
transcripts  of  the  particular  entries,  necessarily,  supply  their 
place.  But  here  there  is  a  certiorari  to  remove  the  record  ;  and, 
where  this  writ  issues  from  a  superior  to  an  inferior  court,  what- 
ever may  be  the  law  in  other  instances,  the  original  record  is  to 
be  returned.  We  are  of  opinion,  therefore,  that,  to  return  a 
transcript,  would  neither  agree  with  our  own  practice,  nor  an- 
swer the  exigence  of  the  writ,  at  the  common  law. 

Rule  made  absolute. 

Cited  by  Counsel,  3  Wr.  172 ;  8  S.  184. 


*[PHILAr)ELPHIA,  DECEMBER  29,  1828.]  r*78l 

Biddle's  Executors  against  Ash. 

FN   ERROR. 

A.  and  B.  in  contemplation  of  marriage,  executed  a  deed,  by  which  a  large 
real  estate,  being  the  wife's  share  and  proportion  of  lier  late  father's  real  estate, 
was  conveyed  to  trustees  upon  certain  trusts  for  her  benefit,  and  in  reference  to 
a  considerable  personal  property,  "  being  her  share  of  the  personal  estate  of  her 
late  father ; "  the  husband  covenanted,  that  all  the  purchases  of  real  estate  he 
might  make,  with  the  above-mentioned  personal  property  of  the  wife,  which 
shouhl  come  to  his  hands  during  the  intended  marriage,  sliould  be  vested  in  tlie 
wife,  subject  to  certain  powers  in  the  husband,  and  that  if,  at  the  time  of  lier 
decease,  he  should  be  in  possession  of  anj-  of  the  personal  property  of  the  wife, 
received  from  the  estate  of  her  late  father,  not  contracted  to  be  laid  out  in  real 
eslate,  he  would  account  to  the  trustees  for  the  princij)al  thereof:  it  being  un- 
derstood that  he  should  not  be  accountable  for  the  interest  or  rent  of  any  such 
moneys  or  estates  as  might  come  into  his  hands  during  their  joint  lives. 

On  the  day  before  the  execution  of  the  settlement,  a  part  of  the  real  estate 
was  sold ;  part  of  the  purchase-money  was  paid,  and  bonds  given  by  the  pur- 
chaser for  the  residue,  which  were  paid  ofi"  after  the  marriage,  but  no  alteration 
was  made  in  the  deed  in  consequence  of  the  sale. 

The  husband,  after  the  marriage,  received  considerable  sums  of  money  from 
the  executors  of  the  wife's  father,  part  of  which  consisted  of  interest  which 
had  become  due  to  that  estate  after  the  date  of  the  marriage  settlement. 

85 


78  SUPREME  COURT  [Philadelphia, 

[Biddle's  Executors  v.  Ash.] 

Part  of  the  wife's  persoiiiil  estate  was  hiid  out  by  the  husband  in  the  pur- 
chase of  vacant  lots,  whicli  were  conveyetl  as  directed  by  the  settlement,  and 
he  expended  considerable  sums  of  money  in  lilling  up  those  lots,  and  curbing 
and  pavinji  in  front  of  them. 

After  the  wife  s  death,  tiie  executors  of  the  surviving  trustee  brought  an  ac- 
tion of  covenant  upon  the  settlement,  against  the  husband,  and  it  was  held. 

That  the  proceeds  of  the  real  estate  sold  before  the  execution  of  the  settle- 
ment, did  not  pass  to  the  trustees,  in  the  place  of  the  land  itself. 

That  the  husband  was  not  bound  by  his  covenant,  to  account  to  the  trustees 
for  the  proceeds  of  the  sale. 

That  he  wtis  not  boimd  to  account  for  moneys  received  from  the  executors  of 
the  wife  s  father,  in  the  shape  of  interest  which  had  accrued  subseipiently  to 
the  date  of  the  settlement ;  and  that  he  was  entitled  to  credit  for  the  exjiense 
of  filling  up  vacant  lots  purchased  in  pursuance  of  tlie  settlement,  and  for 
curbing  and  paving  in  front  of  them. 

This  was  an  action  of  covenant  brought  in  this  court  upon  a 
sealed  instrument,  in  these  words  : 

"  This  indenture  tripartite  made  the  fifteenth  day  of  March, 
in  the  year  of  our  Lord  one  thousand  eight  hundred  and  four, 
between  James  Ash,  of  the  city  of  Philadelphia,  Esquire,  of  the 
first  part,  Rachel  Douglass,  of  the  said  city,  widow,  of  the  second 
part,  and  Charles  Biddle  of  the  said  city.  Esquire,  and  Charles 
French  of  the  same  place,  merchant,  of  the  third  ])art.  Whereas 
the  said  Rachel  Douglass  is  seised  to  her  and  her  heirs  for  ever, 
of  the  following  real  estate  in  the  city  of  Philadelphia,  to  wit : " 
— [Then  followed  a  description  of  a  large  amount  of  real  estate, 
consisting  principally  of  unimproved  lots,  in  and  near  the  city. 
Among  other  estates  described,  was  an  undivided  third  part  of 
r*7QT  ^  three  *story  brick  messuage,  kitchen,  sugar-house, 
L  J  stores,  buildings,  and  improvements,  on  a  lot  of  ground 
situate  on  the  north  side  of  Vine  Street,  between  Second  and 
Third  Streets,  containing  in  front  one  hundred  and  .seventeen 
feet  four  inches.]  "  Being  the  share  and  proportion  of  the  said 
Rachel  Douglass,  in  the  real  estate  of  her  late  father,  Jacob 
Morgan,  assigned  and  allotted  to  her  under  two  writs  of  parti- 
tion, to  divide  the  said  Jacob  Morgan's  estate,  lately  executed 
in  the  Supreme  Court  of  Pennsylvania,  as,  by  the  records  of 
the  said  court,  in  tliat  case,  will  more  fully  appear.  And, 
whereas,  the  said  Rachel  Douglass  is  also  possessed  of,  or  enti- 
tled to  a  considerable  sum  of  money,  goods  and  chattels,  being 
her  share  of  the  personal  estate  of  her  late  father,  the  exact 
amount  and  quantity  of  which  cannot,  at  present,  be  ascertained ; 
and,  whereas,  a  marriage  is  intended  to  be  shortly  had  and 
solemnizefl,  between  the  said  James  Ash  and  Rachel  Douglass, 
and  it  is  the  desire  and  intention,  of  both  parties,  to  secure  the 
said  real  and  personal  estate  of  the  said  Rachel  Douglass,  in  the 
manner  hereinafter  mentioned  :  Now,  this  indenture  witnesseth, 
that  the  said  James  Ash  and  Rachel  Douglass,  in  consideration 
of  the  premises,  and  of  the  sum  of  one  dollar,  to  them,  in  hand 
86 


Dec.  29,  1828.]      OF  PENNSYLVANIA.  79 

[Biddle's  Executors  v.  Ash.] 

paid,  by  the  said  Charles  Biddle  and  Charles  French,  the  re- 
ceipt whereof  is  hereby  acknowledged,  have  granted,  bargained, 
and  sold,  aliened,  enfeoffed,  released,  and  confirmed,  and,  by 
these  presents,  do  grant,  bargain,  and  sell,  aliene,  enfeoff,  re- 
lease and  confirm,  unto  the  said  Charles  Biddle  and  Charles 
French,  their  heirs  and  assigns,  all  and  singular,  the  herein- 
before mentioned  and  described  messuages,  lots,  tenements, 
yearly  rent  charges,  hereditaments,  and  premises,  situated, 
bounded,  and  being  as  hereinbefore  mentioned,  together  with 
the  rights,  privileges,  members  and  appurtenances,  whatsoever 
thereunto  belonging  and  appertaining,  to  have  and  to  hold  the 
same  to  the  said  Charles  Biddle  and  Charles  French,  their  heirs 
and  assigns,  to  the  proper  use  and  behoof  of  the  said  Charles 
Biddle  and  Charles  French,  their  heirs  and  assigns  for  ever. 
In  trust,  however,  and  to  the  use,  intent,  and  purpose  following, 
that  is  to  say :  to  the  use  of  the  said  Hacliel  Douglass,  her 
heirs  and  assigns,  until  the  said  intended  marriage  shall  take 
effect ;  and  from  and  after  the  solemnization  of  the  said  mar- 
riage, then  they,  the  said  Charles  Biddle  and  Charles  French, 
and  their  heirs,  shall  be  and  stand  seised  of  the  premises,  to  the 
intent,  uses,  and  purposes  following,  that  is  to  say :  to  j^ermit 
and  suffer  the  said  James  Ash  and  Rachel  Douglass,  to  take  the 
rents,  issues,  and  profits  of  all  and  singular  the  premises,  for 
and  during  their  joint  lives,  to  their  proper  use  without  impeach- 
ment of  waste ;  and,  from  and  after  the  decease  of  the  said 
Rachel  Douglass,  in  case  the  said  James  Ash  shall  survive  her, 
then,  to  the  use  of  such  person  or  persons,  and  for  such  estates 
and  interests  in  the  premises,  and  every  or  any  part  thereof,  as 
the  said  Rachel  Douglass  may  and  shall,  by  her  last  will  and 
testament,  or  any  instrument  in  writing,  by  her  signed,  and 
attested  by  two  credible  *witnesses,  in  the  nature  of  a  r*on-| 
last  will  and  testament,  or  a  testamentary  appointment.  ■-  -■ 
notwithstanding  her  coverture,  direct,  order,  limit  or  appoint. 
Provided,  that  no  estate  or  interest  in  the  said  premises,  or  any 
part  thereof,  may  or  shall  be  limited,  devised,  or  appointed  to 
the  use  of  the  said  James  Ash,  for  any  longer  time  than  during 
his  natural  life,  *  except  in  case  of  the  death  of  the  children, 
which  she  now  has  and  may  hereafter  have,'  such  being  the  said 
James  Ash's  own  express  desire ;  and  for  want  of  such  testa- 
mentary appointment,  to  be  made  in  manner  aforesaid  by  the 
said  Rachel  Douglass,  she  dying  before  the  said  James  Ash, 
and  also,  in  case  she,  the  said  Rachel  Douglass,  shall  survive 
the  said  James  Ash,  then  to  the  use  of  the  said  Rachel  Douglass, 
her  heirs  and  assigns,  in  fee  simple.  And  the  said  James  Ash, 
for  and  in  consideration  of  tlie  premises,  doth  hereby  covenant, 
grant,  promise,  and  agree  to  and  with  the  said  Charles  Biddle 

87 


80  SUPREME  COURT  [Philadelphia, 

[Biddle's  Executors  v.  AbIj.] 

and  Charles  French,  that  all  and  every  purchase  of  real  estate, 
which  he  may  and  shall  make  with  the  above-mentioned  personal 
property  of  the  said  Rachel  Douglass,  which  shall  come  to  his 
hands  during  the  said  marriage  intended  to  be  solemnized,  shall 
be  conveyed  to  and  vested  in  the  said  Rachel  Douglass,  her 
heirs  and  assigns.  And  it  is  further  covenanted,  agreed,  and 
declared  to  be  the  true  intent  and  meaning  of  these  presents, 
that  the  said  James  Ash  and  Rachel  Douglass,  shall  and  may 
have  power,  during  the  said  coverture  of  the  said  Rachel  Dou- 
glass, to  grant,  bargain,  and  sell,  by  way  of  barter  or  exchange 
for  other  real  estate,  producing  an  income,  all  or  any  of  the  un- 
improved lots  of  ground  belonging  to  the  said  Rachel  Douglass, 
or  which  hereafter  may  belong  to  -her,  or  to  let  out  any  of  the 
said  lots  on  ground  rent.  l-*rovided  the  said  real  estate,  so  to 
be  acquired  by  way  of  exchange,  and  all  and  every  the  ground 
rents  which  may  be  reserved  upon  any  such  lots  of  ground  shall 
be  conveyed  or  reserved  to  and  vested  in  the  said  Rachel  Dou- 
glass, her  heirs  and  assigns,  and  all  such  real  estates  so  to  be 
acquired  by  way  of  exchange,  and  all  such  ground  rents,  to  be 
reserved,  shall  be  subject  to  the  same  uses  and  trusts,  in  all 
respects,  as  are  hereinbefore  declared  and  appointed.  And  the 
said  James  Ash  doth,  by  these  presents,  further  covenant  and 
agree  to  and  with  the  said  Charles  Biddle  and  Charles  French, 
their  heirs  and  assigns,  in  manner  following,  that  is  to  say: 
that  if,  at  the  time  of  the  decease  of  the  said  Rachel  Douglass, 
he,  the  said  James  Ash,  shall  be  in  possession  of  any  of  the 
personal  property  of  the  said  Rachel  Douglass,  received  from 
the  estate  of  her  said  late  father,  which  may  not  be  contractetl 
to  be  laid  out  in  the  purchase  of  real  estate,  conformable  to  the 
provisions  hereinbefore  mentioned,  then,  and  in  such  case,  he, 
the  said  James  Ash,  shall  and  will  account,  with  the  said  Charles 
Biddle  and  Charles  French,  their  heirs  or  assigns,  for  the  prin- 
cipal of  all  such  moneys,  and  well  and  truly  pay  and  satisfy  the 
same :  it  being  understood  and  expressly  declaral,  that  the  said 
r*«l  1  J^"^^^  ^^^1  shall  not  be  accountable  for  the  interest  or 
L  -•  *rent  of  any  such  moneys  or  estates  that  may  come  to  his 
hands  during  the  joint  lives  of  them,  the  said  James  Ash  and 
Rachel  Douglass,  by  reason  of  their  intermarriage  as  aforesaid. 
And,  further,  that  in  case  the  said  Rachel  Douglass  shall  sur- 
vive the  said  James  Ash,  that  then,  and  in  such  *ase,  his,  the 
said  James  Ash's  executors  or  administrators,  shall,  in  like 
manner,  be  accountable  for,  and  shall  pay  and  satisfy  the  ])rin- 
cipal  of  all  such  moneys,  to  the  said  Rachel  Douglass,  without 
being  responsible  for  any  interest  or  rents  that  may  have  ac^- 
crued  during  the  said  coverture.  Provided,  always,  and  it  is 
understood  and  agreed,  that,  in  case  she,  the  said  Rachel  Dou- 
88 


Dec.  29,  1828.]      OF   PENNSYLVANIA.  81 

[Biddle's  Executors  v.  Ash.] 

glass,  shall  survive  him,  the  said  James  Ash,  she  shall  not  and 
will  not  have  or  claim  any  dower  or  thirds  whatever,  of,  in  or  to 
his  estate.     In  witness  whereof,  &c." 

On  the  fourteenth  day  of  March,  1804,  the  day  before  the 
execution  of  the  above  indenture,  the  heirs  of  Jacob  Morgan, 
including  Richard  Douglass,  conveyed  the  sugar-house  estate  to 
Edward  Pennington. 

It  was  agreed  that  a  verdict  should  be  entered  for  the  plain- 
tiffs for  six  cents  damages  and  six  cents  costs,  subject  to  the 
opinion  of  the  court  upon  the  fallowing  points  : 

1.  Whether  the  defendant  is  chargeable  under  his  marriage 
settlement  Avith  Rachel  Douglass  of  the  15th  of  March,  1804, 
with  any  and  what  portion  of  the  money  ])aid  by  Edward  Pen- 
nington for  the  bonds  given  by  him  to  Rachel  Douglass,  for  the 
purchase-money  of  the  sugar-house  and  premises  in  Vine  Street, 
sold  and  conveyed  by  the  heirs  of  Jacob  Morgan  before  the  said 
settlement. 

2.  AVhether  the  defendant  is  chargeable  for  the  full  amount  of 
moneys  paid  him  by  the  executors  of  General  JNIorgau,  or  is  enti- 
tled to  a  credit  for  so  much  of  the  said  moneys  as  consists  of  in- 
terest accrued  to  the  estate  of  the  said  General  Morgan  subse- 
quently to  the  date  of  the  said  marriage  settlement. 

3.  Whether  the  defendant  is  entitled  to  a  credit,  under  the 
said  settlement,  for  moneys  paid  to  fill  up  vacant  lots,  purchased 
for  R.  Ash  and  her  heirs,  and  for  paving  and  curbing  opposite 
the  same,  or  other  property  purchased  by  the  defendant  accord- 
ing to  the  said  settlement. 

It  was  further  agreed,  that  the  case,  with  the  opinion  of  the 
court  upon  the  above  points,  should  be  referred  to  three  referees 
to  be  appointed  by  the  court,  to  adjust  the  accounts  of  the  par- 
ties accordingly,  and  that  in  the  said  adjustment,  credit  should 
be  given  to  the  defendant  for  so  much  of  the  inventory  of  the 
estate  of  the  said  Rachel  Ash,  and  the  interest  thereof,  (exclu- 
ding the  furniture  therefrom,)  as  might  be  necessary  to  meet  the 
demand  of  the  plaintiffs  ;  and  the  balance  of  the  said  inventory 
and  interest,  if  any,  to  be  paid  to  the  said  James  Ash  :  That  the 
report  of  the  said  referees  being  filed  and  ap})roved,  the  court 
should  have  power,  if  anything  be  due  by  the  defendant,  to  en- 
large the  verdict  accordingly,  and  enter  ^judgment  r:)co9-i 
thereon ;  or  if  nothing  should  be  due,  to  set  aside  the  L  "'J 
verdict  and  enter  judgment  for  the  defendant. 

Either  party  to  be  at  liberty,  upon  the  report  of  the  referees 
coming  in,  to  file  exceptions,  introducing  any  other  questions, 
which  they  may  deem  material. 

T.  Sergeant  and  Chauncey,  for  the  plaintiffs. — 1.  There  are 

89 


82  SUPREME  COURT  [PhUadelphui, 

[Biddle's  Executors  v.  Ash.] 

two  objects  which  it  will  be  the  desire  of  the  court  to  effect  in 
the  construction  of  this  settlement.  The  first,  to  preserve  as 
far  as  it  can  be  done,  the  legal  rights  of  the  wife  and  her  chil- 
dren ;  the  second,  to  give  entire  effect,  if  possible,  to  the  deed. 
The  legal  right  of  the  wife  and  her  children,  is  the  preserva- 
tion of  her  real  estate ;  and  the  court  will  be  careful  to  prevent, 
if  possible,  the  loss  of  this  right  by  any  mistake  or  misconcep- 
tion. The  only  mode  of  giving  full  effect  to  the  instrument,  is 
to  consider  the  proceeds  of  sale  to  be  comprehended  in  the  con- 
veyance of  the  thing  sold.  With  these  two  objects  in  view,  what 
is  the  sound  judicial  opinion  upon  the  deed  in  question  ?  It  is 
not  a  case  of  reformation  but  of  construction.  Little  will  be 
gained  of  a  satisfactory  character  by  speculating  upon  the  views 
of  the  parties,  by  any  other  lights  than  those  derived  from  the 
instrument  itself.  From  the  instrument  itself,  is  to  be  deduced 
the  intention  to  secure  to  the  wife,  subject  to  the  husband's  en- 
joyment during  life,  her  real  and  personal  estate,  derive<l  from 
her  father  in  tlie  division  of  his  estate.  This  is  manifest  from 
the  recital  and  the  description  in  the  deed.  The  sugar-house, 
sold  the  day  before  the  execution  of  the  settlement,  was  a  very 
important  part  of  that  estate,  and  is  treated  as  such  in  the  in- 
strument. Notwithstanding  the  prior  sale,  it  is  included  in  the 
deed  as  if  it  were  still  the  property  of  the  Avife.  It  is  plain 
that  the  intention  was  to  settle  this  part  of  her  property,  and  as 
the  land  had  been  sold,  but  the  price  remained  to  be  jwiid.  It 
was  intended  that  the  proceeds  of  sale  should  be  settled  under 
the  description  of  the  land  itself.  The  court  will,  therefore, 
substitute  the  money  for  the  land.  To  the  suggestion,  that  the 
land  having  been  sold  the  day  before  the  execution  of  the  deed, 
it  did  not  pass  to  tlie  trustees,  and  that  to  substitute  the  money 
in  the  place  of  it,  would  be  to  make  a  new  contract  for  the  par- 
ties, it  may  be  answered,  that  the  parties  certainly  meant  some- 
thing by  the  introduction  of  this  estate  into  the  deed.  It  was 
not  matter  of  form  ;  some  substantial  purpose  was  in  view,  and 
the  only  mode  of  giving  effect  to  this  part  of  the  instrument,  is 
to  consider  the  parties  as  preserving  the  intention  they  had  be- 
fore the  sale ;  that  of  including  this  portion  of  the  property  in 
the  settlement.  They  knew  on  the  15th,  that  the  sale  had 
taken  place  on  the  14th,  but  they  coasidered  the  money  or  the 
bonds  of  the  purchaser,  the  same  as  the  land,  and,  therefore, 
made  no  alteration  in  the  instrument.  The  inference,  that  the 
wife  knew  the  legal  effect  of  a  conversion  of  the  property,  and 
meant  that  the  conversion  should  be  followed  by  its  legal  conse- 
r*«'?1  ^l^^^c^s,  is  inconsistent  with  the  retention  of  *this  part 
•-  J  of  the  estate  in  the  deed  of  settlement.  The  only  reason 
that  can  be  assigned  for  the  execution  of  the  instrument  in  the 
90 


Dec.  29, 1828.]       OF   PENNSYLVANIA.  83 

[Biddle's  Executors  v.  Ash.] 

form  in  which  it  stood  is,  that  the  parties  intended  that  the  con- 
veyance in  its  existing  form,  should  carry  the  money.  No  other 
motive  can  be  imagined.  This  part  of  tlie  deed  could  not  have 
been  left  in  as  mere  surplus  matter,  not  of  sufficient  importance 
to  call  for  another  instrument.  The  settlement  was  executed 
with  consideration  and  care,  and  no  part  of  it  can  be  considered 
as  immaterial,  if  effect  can  be  given  to  it.  By  considering  the 
land,  as  including  or  representing  the  price  to  be  paid  for  it, 
effect  is  given  to  the  whole  instrument ;  otherwise,  this  part  of  it 
is  a  dead  letter;  and  thus  the  general  intention  of  the  parties, 
which  was  to  secure  the  wife's  property  to  herself  and  her  chil- 
dren, is  frustrated  by  a  very  large  portion  of  it  being  swept 
away  on  the  eve  of  marriage.  This  construction  is  the  most 
rational  and  satisfactory  that  can  be  given  to  the  instrument  in 
^question. 

Does  the  court  possess  the  power  to  give  it  this  construction  ? 
The  court  will  construe  a  settlement  according  to  the  intent  of 
the  parties,  though  contrary  to  its  literal  expressions.  3  Br.  C. 
C.  569;  2  Eq.  Ab.  28;  1  Fonb.  136,  188,  190.  Words  de- 
scribing the  subject  of  a  grant,  are  very  different  from  w'ords 
limiting  the  estate  granted.  The  latter  are  technical  and  the 
rule  of  law  settles  their  construction  :  the  former  are  not  so,  and 
are  to  be  governed  by  intention.  M' Williams  v.  Martin,  12 
Serg.  &  Rawle,  269.  In  the  present  case,  the  court  cannot 
carry  the  settlement  into  effect,  literally,  by  saying  that  the 
land  passes  to  the  trustees,  because  it  has  been  conveyed  to  an- 
other ;  but  they  may  give  substantial  effect  to  the  instrument, 
and  fulfil  the  intention  of  the  parties,  by  saying,  they  have 
agreed  that  the  money  shall  stand  in  the  place  of  the  land. 
This  construction  injures  no  one.  It  does  not  injure  the  hus- 
band, because  he  agreed,  by  the  settlement,  that  the  land  should 
be  secured  to  the  wife ;  and  he  is  placed  in  no  worse  situation 
by  its  conversion  into  money.  The  substance  of  his  agreement 
was,  that  her  property  should  be  secured,  and  equity  requires 
that  he  should  fulfil  his  agreement.  These  remarks  apply  to 
the  general  scope  and  character  of  the  instrument. 

The  next  question  is,  does  the  covenant  of  Mr.  Ash  embrace 
this  money?  It  does  so  in  terms.  If,  at  the  time  of  the 
decease  of  Mrs.  Ash,  he  should  be  in  possession  of  any  of  her  per- 
sonal property,  received  from  the  estate  of  her  father,  not  con- 
tracted to  be  laid  out  in  the  purchase  of  real  estate,  he  cove- 
nanted to  account  for  the  principal  thereof  to  his  wife's  trustees. 
The  money  in  question  is  personal  estate  of  his  wife,  received 
from  the  estate  of  her  late  father ;  and  if  the  letter  of  the  in- 
strument is  to  govern,  the  case  is  within  the  covenant. 

2.  Mr.  Ash  was  to  enjoy  the  interest  of  any  moneys  which 

91 


83  SUPREME  COURT  [PhUadelphm, 

[Biddle's  Executors  v.  Ash.] 

might  come  into  his  hands,  from  the  time  they  so  came  into  his 
hands,  during  the  coverture ;  but  there  is  nothing  which  gives 
r-ifOA-t  him  a  larger  interest.  *The  personal  proj)erty,  at  the 
L  J  execution  of  the  settlement,  was  not  ascertained  ;  when 
ascertained,  it  was  to  be  paid,  by  the  executors,  to  the  trustees ; 
and  then,  but  not  until  then,  the  right  of  Mr.  Ash  to  the  profits 
attached.  His  covenant,  accordingly,  is  to  account  for  the  prin- 
cipal of  all  moneys  coming  into  his  hands,  but  not  for  rents  or 
interest.  Upon  the  literal  construction  of  this  covenant  there  can 
be  no  doubt ;  and  the  spirit  of  the  settlement  accords  with  jt. 

3.  The  expenses  referred  to  in  the  third  point,  are  of  two 
kinds;  first.  Filling  up  vacant  lots.  Secondly,  curbing  and 
paving.  They  were  either  voluntarily  incurred,  or  incident  to 
the  tenancy.  If  voluntarily  incurred,  and  for  the  improvement 
of  the  property,  there  is  no  pretence  of  legal  right  to  have  them 
allowed.  If  they  were  incident  to  the  tenancy,  and  no  charge 
on  the  estate,  he  has  as  little  legal  right  to  an  allowance.  If 
they  were  a  charge  on  the  estate,  he  equitably  represents  the 
charge,  and  the  burden  must  be  apportioned  between  him  and 
those  in  remainder. 

Tilghman  and  JSinney,  for  the  defendant. 

1.  The  action  is  covenant  upon  the  deed  of  the  15th  of  March, 
1804  ;  and  the  question  is,  whether  there  has  been  any  breach  of 
the  defendant's  covenants  contained  in  that  instrument  ?  If  no 
covenant  was  broken  in  not  accounting  for  the  money  received 
on  Pennington's  bonds,  Mr.  Ash  is  not  chargeable  with  it.  The 
case  does  not  present  the  question,  whether  that  money  ought 
to  be  regarded  as  land ;  and  if  it  does,  the  money  was  hers,  to 
do  as  she  pleased  with  ;  and  she  has  not  chosen  that  it  should  be 
settled  to  her  separate  use.  The  clear  interpretation  of  the 
deed  is,  that  Ash's  covenant  is  expressly  confined  to  the  per- 
sonal estate  of  Jacob  Morgan,  belonging  to  Rachel  Douglass,  and 
does  not  extend  to  the  proceeds  of  the  sale  of  his  real  estate. 
With  the  particular  real  estate  described  in  the  settlement,  he 
had  nothing  to  do,  as  it  passed  to  the  trustees.  As  to  her  share 
of  her  father's  personal  estate,  he  has  covenanted,  that  all  the 
purchases  he  should  make  with  it,  should  be  conveyed  to  his 
wife,  her  heirs  and  assigns,  subject  to  certain  powers  of  letting 
and  exchanging ;  and  if,  at  her  decease,  he  should  be  in  posses- 
sion of  any  personal  property  of  the  said  Rachel  Douglass,  re- 
ceived from  the  estate  of  her  said  late  father,  not  contracted  to 
be  laid  out  in  real  estate,  according  to  the  previous  provision, 
he  further  covenanted  to  account,  to  the  trustees,  for  the  princi- 
pal. The  last  covenant  was  supplementary  to  the  first.  They 
both  related  to  the  same  personal  estate,  viz.,  the  personal  prop- 
92 


i)ec.  29, 1828.]       OF  PENNSYLVANIA.  84 

[Biddle's  Executors  v.  A  sh.] 

erty  reoeived  from  the  estate  of  her  father;  and  not  to  the 
proceeds  of  his  real  estate.  This  construction  cannot  be  avoided. 
No  personal  property,  except  what  was  the  personal  property 
of  Jacob  Morgan,  is  assigned  to  the  trustee.  There  was  no  in- 
tention to  provide  for  any  other,  by  any  provision  in  the  instru- 
ment. There  is  no  knowledge  of  the  existence  of  such  personal 
estate  as  the  bonds  of  Mr.  Pennington,  shown  in  Mr.  Ash,  who 
was  an  utter  stranger  *to  the  sale  of  the  sugar-house  estate.  r*oc-| 
To  make  a  covenant  at  law,  as  to  these  bonds,  by  the  ■-  ^ 
terms  of  the  settlement  is  impossible.  It  is  equally  impossible 
so  to  reform  the  settlement,  in  equity,  as  to  make  a  new  cove- 
nant at  law. 

As  to  the  general  question  of  equity,  if  anything  could  be 
done,  it  would  be  to  put  the  bonds  in  the  same  situation  as  the 
sugar-house ;  to  transfer  them  to  the  trustees  to  be  invested  in 
lauds  upon  the  same  trusts.  But,  such  was  not  the  destination 
of  the  personal  property  mentioned  in  the  deed,  which  was  to 
be  invested  in  real  estate,  in  the  name  of  Mrs.  Ash,  heirs  and 
assigns:  consequently,  the  reformation  of  the  deed  would  not 
affect  his  covenant,  as  he  had  nothing  to  do  M'ith  the  maiter  re- 
formed. But,  to  justify  any  change  in  the  instrument,  that 
must  be  proved  which  cannot  be  proved.  There  is  no  evidence 
of  any  mistake  or  misapprehension,  on  the  part  of  Mrs.  Ash, 
at  the  execution  of  the  deed.  She  knew  that  this  estate  had 
been  sold  before  the  settlement,  and,  that,  therefore,  it  did  not 
pass.  She  received  part  of  Pennington's  first  payment,  and 
used  it  as  she  pleased.  When  the  bonds  were  paid  off,  she  re- 
ceived three  thousand  dollars  from  Ash,  which  she  disposed  of 
as  she  thought  proper.  Her  trustees  knew  this,  and  never  made 
a  claim  in  her  lifetime.  She  died  in  1817,  and  no  suit  was  in- 
stituted till  1824.  It  does  not  appear  to  have  been  intended  to 
tie  up  all  her  property :  other  real  estate  of  great  value,  de- 
rived from  her  father,  and  personal  property,  in  her  possession, 
derived  from  her  former  husband,  were  not  included  in  the  set- 
tlement. Her  intention,  in  respect  to  the  sugar-house  estate, 
as  declared  in  the  deed,  was  changed,  as  her  own  act,  before  its 
execution  proved.  There  wa.s  merely  an  omission,  on  her  part, 
to  strike  out  this  part  of  the  deed.  But,  the  mistake  of 
Mrs.  Ash,  if  it  were  shown,  w^ould  not  be  sufficient  to  justify  the 
reformation  called  for.  The  mistake,  both  of  the  husband  and 
wife,  must  be  shown,  and  there  is  no  evidence  of  mistake  on  the 
part  of  Mr.  Ash.  He  assented  to  the  settlement,  as  it  was 
offered,  supposing  the  estate  to  be  described.  Had  he  known  of 
the  previous  sale  there  is  nothing  to  show  that  he  would  have 
assented  to  settle  the  money.  No  intenticm  appears,  in  him,  to 
settle  the  personal  estate,  derived  from  the  real  estate  of  Jacob 

93 


86  SUPREME  COURT  [PhUmleljjhia, 

[Biddle's  Executors  v.  Ash,] 

Morgan.  This  is  not  a  deed  which  chancery  wouKl  alter.  It 
is  a  marriage  settlement  executed,  of  very  land,  and  very  per- 
sonal estate.  Nothing  else  is  included,  and,  with  such  a  settle- 
ment equity  would  not  meddle,  except  from  evidence  aliunde. 
The  case  of  articles,  and  a  settlement  in  pursuance  of  them,  is 
peculiar.  The  court  will  not  reform  a  settlement,  according  to 
the  articles,  where  both  are  made  before  marriage,  unless  the 
settlement  be  declared  to  be  in  pursuance  of  the  articles ;  for, 
before  marriage,  the  parties  may  alter  their  intention,  as  to  the 
terms  of  it,  though  they  cannot  afterwards.  The  court  will, 
therefore,  suppose  that  the  settlement  was  made  in  pursuance 
of  the  new  agreement,  and  not  of  the  articles.  But,  with  a" 
deed  completely  executed,  as  this  was,  before  marriage,  equity 
r*Sfi1  ^  "^^  *interfere.  Fearne,  90  to  110;  Madd.  Ch.  61 ; 
L  ^^^  1  Fonb.  im,  (note,)  396.  The  intention  of  the  settler, 
in  relation  to  the  sugar-house  estate,  was  certainly  altered.  It 
wa.s  altered  as  to  its  passing  as  real  estate ;  and  there  is  nothing 
to  show  a  new  intention  to  pass  it  as  personal  estate.  If  the 
court  alter  this  deed,  they  must  make  a  new  settlement,  and 
impose  new  covenants  on  the  defendant,  or  decree  that  the  trus- 
tees recover  this  money,  and  invest  it  upon  the  same  trusts 
which  were  intended,  in  respect  to  the  sugar-house,  before  the 
sale,  for  which  there  is  no  warrant. 

2.  The  question,  in  relation  to  the  interest,  is  easily  disposed 
of.  The  defendant  was  entitled  to  his  wife's  personal  property, 
eo  instanti  of  the  marriage.  Whatever  interest  it  accumulated 
after  the  marriage,  was  his.  He  was  responsible  for  none  which 
accrued  during  coverture,  no  matter  into  whose  hands  it  may 
have  come. 

3.  The  defendant  covenanted  to  invest  the  personal  estate  of 
his  wife,  derived  from  her  father,  in  real  estate,  to  be  conveyed 
to  her,  her  heirs  and  assigns ;  and,  that  if  any  of  that  money 
should  remain  in  his  hands,  at  her  death,  not  contracted  to  be 
laid  out  in  real  estate,  he  would  account  for  it  with  the  trus- 
tees. He  laid  out  money  in  the  purchase  of  vacant  lots,  for 
which  he  is  credited.  He  also  laid  out  money  in  filling  up  those 
lots,  and  in  curbing  and  paving  in  front  of  them ;  and  the  ques- 
tion is,  whether  or  not  he  is  entitled  to  credit  for  those  expendi- 
tures? He,  clearly,  is  entitled  to  such  a  credit.  The  money 
thus  expended,  formed  part  of  the  price  of  the  lots.  A  lot, 
before  it  is  filled  up,  is  worth  one  sum;  when  filial  up, it  is  worth 
a  greater  sum.  The  cost  of  the  lot,  therefore,  consists  of  two 
parts;  the  price  paid  for  it  before  it  is  filled  up,  and  the  money 
expended  in  filling  it  up,  and  putting  it  in  aisituation  to  be  used 
according  to  the  city  regulations.  The  same  remark  aj)])lics  to 
the  curbing  and  paving.     If  these  expenses  had  been  incurred 

94 


Dec.  29,  1828.]      OF  PENNSYLVANIA.  86 

[Eiddle'g  Executors  v.  Ash. 

immediately  after  tlio  purchase,  no  doubt  would  have  existed ; 
their  having  been  incurred  after  a  considerable  lapse  of  time, 
can  make  no  difference.  The  principle  is  not  affected  by  time. 
The  defect  does  not  arise  after  purchase,  but  is  a  pre-existing 
and  permanent  one.  Until  the  lots  are  filled  up,  they  can  yield 
no  revenue.  This  expense,  therefore,  enters  into  the  prime 
cost  of  the  land,  and  should  be  credited  to  the  defendant,  as 
coming  within  the  words,  and  certainly  within  the  spirit  of  the 
covenant.  It  was  incurred  for  the  benefit  of  the  wife  and  her 
heirs,  and  consequently,  the  question,  how  the  burden  shall  be 
apportioned  between  the  tenant  for  life,  and  the  remainder  man, 
does  not  arise. 

The  opinion  of  the  court  was  delivered  by 

Gibson,  C.  J. — It  is  conceded,  that  this  is  not  a  case  of  acci- 
dent or  mistake,  calling  for  the  intervention  of  a  chancellor  to 
reform  the  instrument ;  but  one  purely  of  construction.  At  law, 
it  is  the  case  of  a  contract  executed,  and  passing  nothing  but 
real  estate,  actually  *in  the  grantor  at  the  time  of  the  r*o7-i 
delivery;  and  it  can  be  turned  into  an  agreement  in  •-  -I 
equity,  only  to  subserve  some  clear  and  indisputable  intention 
inconsistent  with  the  legal  effect  of  the  instrument.-  Here  that 
effect  is  to  pass  nothing ;  for  nothing,  as  regards  the  Vine  Street 
property,  the  proceeds  of  which  are  in  contest,  was  in  the 
parties.  The  only  case  in  which  an  interest,  resembling  the 
present,  has  been  held  to  pass  by  a  conveyance  of  the  land,  is 
that  of  a  grantee  of  land^,  within  the  seventeen  townships  which 
had  been  certified  to  a  Connecticut  claimant ;  (Evans  v.  The 
Commonwealth,  2  Serg.  &  Rawle,  448,)  and  there  the  grantee 
was  permitted  to  recover  the  compensation  allowed  by  the  state ; 
but  only  because  it  was  considered,  that  before  compensation 
made,  the  divestiture  was  incomplete.  What  proof  then  have  we 
that  the  proceeds  of  the  Vine  Street  property  were  intended  to 
be  substituted  for  the  property  itself?  The  actual  intent  can 
neither  be  ascertained  nor  conjectured.  The  parties  may  possi- 
bly have  supposed,  that  the  proceeds  would  be  covered  by  the 
defendant's  covenant  to  account  for  his  wife's  personal  property, 
derived  from  her  father's  estate,  of  which  he  should  be  pos- 
sessed at  her  death ;  and  if  such  a  supposition  were  clearly  dis- 
closed, it  might,  perhaps,  give  rise  to  an  equity  which  we  ought 
not  to  disregard ;  or,  what  is  more  probable,  they  may  have  in- 
tended to  withdraw  the  property  from  the  operation  of  the  set- 
tlement together ;  and,  for  either  of  these  reasons,  a  new  con- 
veyance, adopted  to  the  altered  circumstances  of  the  case,  may 
have  been  deemed  unnecessary.  But  the  first  is  inconsistent 
with  the  notion,  which  has  been  earnestly  pressed  on  us,  that 

95 


87  SUPREME  COURT  [Philadelphia, 

[Bidille's  Executors  r.  Ash.] 

the  proceetls  passed  by  the  grant  of  the  property  itself;  with, 
or  Avithout  wliieli,  I  am  unable  to  perceive  how  the  plaintiff  can 
make  out  a  case.  If  they  pass  by  this,  which  is  the  only  oper- 
ative clause  in  the  deed,  they  did  so  with  all  the  attributes  of 
real  estate,  and  subject  to  the  uses  and  limitations  expressly  at- 
tached to  them  as  such ;  consequently,  the  defendant  would  l)e 
entitled,  during  his  life,  as  tenant  by  the  curtesy.  If  they  did 
not  pass  by  that  clause,  then  the  deed  contains  no  clause  appli- 
cable to  them ;  and  the  act  of  turning  the  pro})crty  into  j>er- 
sonalty,  would  have  the  effect  of  subjecting  it  to  the  defend- 
ant's marital  rights,  and  giving  it  to  him  absolutely.  For  it  is 
only  by  introducing  the  proceeds  into  the  settlement,  as  a  sub- 
stitute for  the  estate,  that  they  can  be  made  out  to  be  the  personal 
property  of  the  wife,  and  subject  to  the  husband's  covenant  to 
account  for  them  as  such,  being  derived  from  her  father's  estate. 
But  it  is  impossible  to  treat  the  proceeds  as  real  estate,  only  for 
the  purpose  of  giving  the  wife  an  interest,  and  personal,  for  the 
purpose  of  subjecting  it  to  the  husband's  covenant.  It  may  he 
either  the  one  or  the  other ;  but  it  will,  necessarily,  be  attended, 
throughout,  with  all  the  incidents  of  the  character,  which  we 
shall  first  attribute  to  it ;  and  this  is  a  dilemma  from  which  I ' 
see  no  escape. 

The  true  construction  is,  however,  that  it  did  not  pass  at  all. 
r*«8l  *That  the  parties  intended  to  include  the  Vine  Street  prop- 
L  -■  erty,  when  the  conveyance  was  prepared,  is  perfectly 
clear ;  but  it  is" equally  clear  that  they  had  changed  their  intention 
when  it  was  executed.  It  is  nearly  impossible  to  refer  their  having 
parted  with  the  title,  in  the  meantime,  to  any  other  motive.  If 
there  were  no  other  estate  on  which  the  conveyance  could  operate, 
that  would  make  the  case  a  perplexing  one ;  perhaj)6  any  con- 
struction would  be  adopted  to  prevent  the  deed  from  becoming  a 
nugatory  act.  But  here,  there  was  a  large  estate  besides,  which 
passed  by  the  conveyance.  It  was,  no  doubt,  believed,  that  the 
retaining  of  the  clause  which  relates  to  the  Vine  Street  prop- 
erty, could  do  no  harm,  as  nothing  was  left  for  its  operation ;  and 
the  existence  of  it  is  attributable  to  a  change  of  intention, 
without  a  correspondent  change  in  the  terms  of  the  conveyance 
having  been  deemed  necessary.  An  analogous  construction  is 
always  adopted  in  the  case  of  a  settlement  preceded  by  articles, 
and  executed  before  the  marriage ;  which  will  not  be  reformed 
so  as  to  render  it  conformable  to  the  articles,  unless  it  purport 
to  have  been  made  in  pursuance  of  the  articles,  or  there  be 
proof  of  mistake  dehors;  the  variance  being  attributed  to  a 
change  of  intention,  which  the  parties  had  a  right  to  make. 
Here  there  is  nothing  to  indicate  the  existence  of  any  but  a 
partial  change  of  intention,  or,  if  there  were,  to  raise  an  equity 
96 


Dec.  29, 1828.]       OF   PENNSYLVANIA.  88 

[Biddle's  Executors  v.  Ash.] 

from  it ;  the  legal  construction  being  the  natural  one, — that  the 
parties  intended  to  withdraw  the  Vine  Street  property  from  the 
settlement  altogether,  leaving  the  proceeds  of  it  to  the  legal 
consequences  of  the  marriage.  A  contrary  intent,  clearly  and 
explicitly  made  out,  is  necessary  to  the  success  of  the  plaintiff's 
case;  without  which  we  cannot  hold  tlie  defendant  accountable. 

That  the  defendant  is  not  bound  to  account  for  moneys  received 
from  the  executors  of  the  wife's  father,  in  tlie  shape  of  interest, 
which  accrued  subsequently  to  the  date  of  the  settlement,  when 
he  became  entitled  to  the  use  of  tlie  principal,  is  so  entirely  con- 
sistent with  reason  and  the  intention  of  the  parties,  that  it  is  but 
necessary  to  state  the  proposition,  without  entering  into  a  par- 
ticular discussion  of  it. 

The  remaining  inquiry  is,  whether  the  defendant  is  entitled 
to  a  credit  for  filling  up  certain  vacant  lots  which  he  purchased 
for  the  benefit  of  his  wife,  jiursuant  to  the  settlement,  and  for 
paving  and  curbing  opposite  to  them.  The  paving  and  curbing, 
it  seems,  were  required  by  the  ordinances  of  the  city,  and  it 
has  very  properly  been  conceded,  that  this  part  of  the  charge 
is  unobjectionable.  But  I  cannot  perceive  how  expense  in- 
curred in  filling  up  and  rendering  the  lots  productive,  can  be 
distinguished  from  it.  The  settlement  ought,  in  this  respect, 
to  be  beneficially  construed  in  favor  of  the  object,  and  all  this 
expenditure  may,  therefore,  be  fairly  put  down  to  the  original 
cost.     On  all  the  points  we  are  of  opinion  wnth  the  defendant. 

Judgment  for  the  defendant. 

Cited  by  Counsel,  10  Barr,  392 ;  2  W.  N.  C.  673. 

In  Rice  i-.  Rice,  2  \V.  N.  C.  672,  the  settlement  was  made  after  marriage, 
and  the  sale  of  tlie  land  after  the  settlement,  and  it  was  held  that  the  sale 
worked  a  conversion  and  the  rights  of  the  husband  attached. 


♦[Philadelphia,  December  29,  1828.]  [*89] 

In  the  Matter  of  the  Petition  of  Henry  Shoemaker. 

Where,  in  a  deed  conveying  land,  and  reserving  a  rent  charge,  the  grantor 
covenants,  upon  the  grantee  paying,  within  seven  years,  a  gross  sum,  togetlier 
with  all  arrearages,  &c.,  to  release  and  discharge  the  rent,  the  grantee  cannot, 
after  the  lapse  of  eighteen  years  from  the  time  prescribed  in  the  deed,  call 
upon  the  grantor  to  perform  his  covenant. 

This  case  came  before  the  court  on  a  petition  presented  by 
Henry  Shoemaker,  under  the  act  of  assembly  of  the  51  h  of 
February,  1821,  entitled,  "A  further  supplement  to  an  act  en- 
titled, 'An  act  to  enable  executors  and  administrators,  by  leave 
of  court,  to  convey  lands  and  tenements,  contracted  for  with 
VOL.  I. — 7  97 


89  SUPREME  COURT  [Philadelphia, 

[In  the  Matter  of  the  Petition  of  Henry  Slioemaker.] 

their  decedents,  and  for  other  purj)oses  therein  mentioned,  passed 
the  thirty-first  day  of  March,  1792.'  " 

The  petition,  in  substance,  set  forth  John  H.  Brinton,  and 
Jonathan  W.  Condy,  of  the  city  of  Philadelphia,  Esqrs.,  by 
their  deed  on  the  7th  of  May,  1803,  granted  to  Henry  Hurst, 
in  fee,  a  certain  lot  of  ground,  situated  on  the  south  side  of 
Sassafras  Street,  between  Delaware  Eighth  and  Ninth  Streets,  in 
the  said  city,  reserving  to  the  grantors,  their  heirs  and  assigns, 
a  ground  rent  of  fifty-three  dollars  and  thirty -three  cents  per 
annum :  That,  by  the  said  deed,  it  was  providetl,  "  that  if  the 
said  Henry  Hurst,  his  heirs  and  assigns,  should,  at  any  time 
within  seven  years,  pay  or  cause  to  be  paid,  to  the  said  John 
H.  Brinton  and  Jonathan  W.  Condy,  their  heirs  and  assigns, 
the  sum  of  eight  hundred  and  eighty-eight  dollars  and  eighty- 
four  cents,  and  all  arrearages  of  rent  to  the  time  of  payment, 
then  the  same  should,  for  ever  thereafter,*cease  and  be  extin- 
guished, and  the  covenant,  upon  payment  thereof,  should  be- 
come void,  and  then  the  said  John  H.  Brinton,  and  Jonathan 
W.  Condy,  their  heirs  and  assigns,  would  execute  a  release  and 
discharge  of  the  said  yearly  rent,  to  the  said  Henry  Hurst,  his 
heirs  and  assigns  for  ever.  That  the  said  John  H.  Brinton  and 
Jonathan  W.  Condy,  for  themselves,  their  heirs,  executors,  and 
administrators,  covenanted  that  the  said  Henry  Hurst,  his  heirs 
and  assigns,  paying  the  rent  and  taxes,  or  extinguishing  the 
same,  and  performing  the  covenants,  should  hold  the  said  lot  of 
ground,  and  receive  the  rents  and  profits  thereof  without  moles- 
tation from  the  grantors,  or  any  persons  claiming  under  them  : 
That,  by  sundry  mesne  conveyances,  the  title  to  the  said  rent 
charge  became  vested  in  Johu  D.  Coxe,  who  died,  having  ap- 
pointed Daniel  W.  Coxe,  Joseph  Reed,  and  John  Watmough, 
his  executors  :  That  the  petitioner  had  become  legally  seised  in 
fee  of  the  said  lot  of  ground,  subject  to  the  covenants  running 
with  the  land,  as  contained  in  the  above  deed  to  Henry  Hurst : 
That  the  conveyance  of  the  said  lot  of  ground,  upon  the  condi- 
tion that  he  would  pay  the  sum  of  eight  hundred  and  eighty- 
eight  dollars  and  eighty-four  cents,  to  the  grantors,  within  seven 
years,  the  petitioner  conceived  to  be,  in  equity,  a  mere  loan 
r*Qm  of  money  *by  the  pledge  of  the  estate,  in  the  nature  of  a 
•-  J  mortgage :  That  the  covenant  to  pay  the  said  sum  of 
money,  by  the  said  Henry  Hurst,  could  now  be  substantially 
performed  by  the  petitioner,  according  to  the  real  intent  and 
meaning  of  the  parties :  That  the  deed  contained  no  provision 
restricting  the  said  Henry  Hurst,  or  his  assigns,  as  to  the  time 
of  paying  the  said  sum  of  money ;  but,  only,  that  he  should  not 
be  called  upon  by  them,  to  pay  it  within  seven  years ;  and,  on 
the  contrary,  it  was  provided,  that  if  the  said  Plenry  Hurst,  his 
98 


Dec.  29,  1828.]        OF   PENNSYLVANIA.  90 

[In  the  Matter  of  the  Petition  of  Henry  Shoemaker.] 

heirs  or  assigns,  should  extinguish  the  said  rent,  they  should 
hold  the  lot  freely,  peaceably,  and  quietly  for  ever;  and  take 
the  rents  and  profits  thereof,  without  any  molestation,  interrup- 
tion, or  eviction  of  the  grantors,  or  their  heirs,  or  any  other 
persons  claiming  under  them.  The  petitioner,  therefore,  prayed 
the  court  to  make  an  order,  authorizing  and  requiring  the  exe- 
cutors of  John  D.  Coxe,  on  payment  to  them  of  the  arrearages 
of  the  said  rent,  with  the  interest  that  might  be  due  thereon, 
together  with  the  additional  sum  of  money  mentioned  in  the 
deed,  to  make  and  execute  a  sufficient  release  or  discharge  of 
the  said  yearly  rent,  to  the  petitioner,  according  to  the  true 
intent  and  meaning  of  the  parties. 

Upon  this  petition,  a  citation  issued  to  the  executors  of  John 
D.  Coxe,  returnable  on  the  15th  of  December,  1828,  to  answer 
the  complainant  on  his  petition. 

Davis,  for  the  complainant. 

Reed,  for  the  respondents.  . 

Per  Curiam. — The  petitioner  insists  on  a  right  to  redeem, 
after  the  lapse  of  eighteen  years  from  the  period  fixed  by  the 
parties,  on  the  ground,  that,  in  equity,  time  is  not  of  the  essence 
of  the  contract.  It  is,  however,  clearly  so  here.  The  rent 
charge  happens  to  be  of  more  value  now,  than  the  sum  pre- 
scribed in  the  conveyance  to  be  paid  for  it.  Hurst  stipulated 
for  seven  years,  in  which  to  make  his  election,  and  the  peti- 
tioner, claiming  under  him,  demands  twenty-five.  No  compen- 
sation is  offered,  nor  could  we  enforce  the  acceptance  of  it, 
without  driving  the  respondents  into  a  new  contract.  Had  the 
rent  charge  been  of  less  value  than  the  money,  the  petitioner 
could  not  have  been  compelled  to  redeem ;  and  the  prayer  is, 
therefore,  manifestly  inequitable.  / 

Petition  dismissed. 


*  [Philadelphia,  December  29,  1828.]  [*91] 

Duffield  and  Others  against  Brindley  and  Others. 

An  exemplification  of  a  deed  dated  the  23d  of  June,  1696,  acknowledged  in 
open  court  on  the  4th  of  August,  1696,  and  recorded  the  27th  of  October,  1740, 
held,  to  be  admissible  in  evidence,  the  original  deed  having  been  lost. 

This  was  an  ejectment  for  a  lot  of  ground  on  the  north-east 
corner  of  Walnut  and  Fifth  Streets,  in  the  city  of  Philadelphia, 

99 


91  SUPREIME  COURT  [PhUad^lphia, 

[DafReld  and  others  v.  Brindley  and  others.] 

tried  before  Mr.  Justice  Rogers,  and  a  special  jury  at  Nisi 
Prim,  on  the  24th  of-  November,  1827. 

The  plaintiffs  showed  title  in  Caleb  Pusey,  and  gave  in  evi- 
dence an  exemplification  of  a  deed  from  Caleb  Pusey  to  Daniel 
Jones,  which  bore  date  9th  month  19th,  1690,  w^as  acknowletlged 
in  open  court  10th  month  2d,  1690,  and  was  recorded  10th 
month  29th,  1690.  The  plaintiffs  claimed  as  heirs  of  Daniel 
Jones. 

The  defendants  contended  that  if  Daniel  Jones  ever  had  any 
title  to  the  premises  in  dispute,  he  had  conveyed  it  to  David 
Lloyd,  by  deed  bearing  date  the  23d  of  June,  1696  ;  and  offered 
in  evidence  a  paper  purporting  to  be  an  exemplification  of  the 
said  deed,  which  appeared  to  have  been  acknowledged  in  open 
court  on  the  4th  of  August,  1696,  and  recorded  on  the  27th  of 
October,  1740.  They  produced  the  book  of  the  Recorder  of 
deeds  of  the  city  and  county  of  Philadelphia,  and  showed  about 
sixty  instances  in  which  deeds  had  been  recorded  under  similar 
circumstances.  To  the  paper  thus  offered  the  plaintiffs'  counsel 
objected,  but  the  court  admitted  the  evidence,  the  plaintiff  hav- 
ing leave  to  move  for  a  new  trial,  on  the  ground  that  the  paper 
was  not  competent  evidence.  A  motion  for  a  new  trial  was  ac- 
cordingly made,  and  the  only  question  was,  whether  or  not  the 
evidence  was  properly  admitted. 

Rawle,  Jr.,  for  the  plaintiffs. — From  the  face  of  the  paper 
it  appeared,  that  the  alleged  deed  was  not  acknowledged  or 
proved  in  such  a  manner  as  to  entitle  it  to  be  recorded,  and 
consequently,  an  exemplification  of  it  was  not  evidence.  The 
objection  is  not  captious  and  formal,  but  solid  and  substantial. 
The  paper  is  offered  instead  of  the  deed  itself,  to  show  that  the 
title  has  passed  out  of  the  plaintiffs'  ancestor;  and  where  a 
statutory  substitution  is  made  of  such  secondary  evidence,  for 
evidence  of  a  primary  character,  the  statute  should  be,  at  least 
substantially,  complied  with.  If  the  original  deed  had  been 
produced,  it  might  have  been  liable  to  many  objections  apparent 
on  the  face  of  it,  over  which  a  veil  is  now  drawn.  A  strict 
scrutiny,  therefore,  is  called  for,  particularly  in  a  case  in  which 
the  exemplification  shows,  that  the  deed  was  not  recorded  until 
forty-four  years  after  its  date. 

The  act  of  1715, 1  Sm.  L.  94,  prescribes  the  manner  in  which 
deeds  shall  be  acknowledged  or  proved  to  entitle  them  to  be 
r*Q91  recorded,  *and  declares,  that  of  all  deeds  so  enrolled, 
L  J  exemplification  shall  be  evidence.  Unless,  therefore,  the 
acknowledgment  or  probate  be  according  to  the  terms  of  the 
law,  the  enrolment  avails  nothing,  either  for  the  purpose  of  con- 
veying notice  to  subsequent  purchasers,  or  of  making  exempli- 
100 


Dee.  29,  1828.]      OF  PENNSYLVANIA.  92 

£Duffield  and  others  v.  Brindley  and  others.] 

fications  evidence,  Simon  v.  Brown,  3  Yeates,  186  ;  Heister  v, 
Fortner,  2  Binn.  40 ;  Downing  v.  Gallagher,  2  Serg.  &  Rawle, 
455  ;  Vickroy  ».  M'Knight,  4  Binn,  209 ;  Doe  v.  lloe,  1  Johns. 
Cas.  402.  When  the  deed  from  Jones  to  Lloyd  was  recorded, 
the  only  act  in  force  relating  to  the  subject,  was  that  of  1715. 
Prior  to  that  period,  several  acts  had  been  passed,  some  of  which 
had  been  repealed,  some  had  expired  by  their  own  limitation, 
and  others  continued  in  force  until  the  act  o£  1715  was  passed, 
(Province  Laws,  Appendix,  in  which  the  several  acts  are  to  be 
found.)  The  act  of  the  10th  of  March,  1683,  Pro  v.  L.  App.  9, 
which  directs  deeds  to  be  acknowledged  in  open  court  and  en- 
rolled, and  makes  exemplifications  evidence ;  and  that  of  June, 
1693,  Prov.  L.  App.  14,  which  declares  that  deeds  need  not  be 
enrolled,  but  that  if  enrolled,  exemplifications  shall  be  evidence, 
were  in  force  when  the  law  of  1715  was  enacted.  The  act  of 
1715  was  not  a  supplement  to  the  existing  laws,  but  introduced 
an  entirely  new  system,  providing  differently  for  the  same  cases, 
and,  therefore,  excluding  the  operation  of  the  old  laws.  It  con- 
tained no  repeal  in  terms,  but  it  was  inconsistent  with  the  pre- 
existing laws,  and,  therefore,  repealed  them,  6  Bac.  Ab.  372 ; 
Rex  V.  Cator,  4  Burr.  2026.  If,  then,  the  paper  was  evidence, 
it  must  have  been  so  by  virtue  of  the  act  of  1715,  with  the  pro- 
visions of  which,  it  certainly  does  not  comply.  The  deed  was 
acknowledged  agreeably  to  the  laws  in  force  at  that  time,  and, 
had  it  been  recorded  wliile  those  laws  were  in  operation  which 
authorized  deeds  so  acknowledged,  to  be  recordefl,  an  exempli- 
fication would  have  been  admissible.  But  it  was  not  recorded 
until  many  years  after  those  laws  had  ceased  to  exist.  Having 
been  duly  acknowledged  under  a  law^  which  had  been  repealed, 
would  not  entitle  it  to  be  recorded  under  a  subsequent  law  which 
required  deeds  to  be  acknowledged  in  a  manner  totally  different, 
in  order  to  be  recorded.  The  2d  and  3<1  sections  of  the  act  of 
1715,  declares,  that  before  any  deed  shall  be  recorded,  the 
grantor  shall  acknowledge  it,  or  its  execution  shall  be  proved 
by  two  or  more  witnesses  before  a  justice  of  the  peace  of  the 
proper  county  or  city  where  the  lands  lie,  who  shall,  under  his 
hand  and  seal  certify,  such  acknowledgment  or  proof  on  the 
back  of  the  deed,  with  the  day  and  year  when  the  same  was 
made,  and  by  whom  ;  and  the  fifth  section  declares,  that  copies 
or  exemplifications  of  all  deeds  so  enrolled,  shall  be  admitted  in 
evidence-  The  deed  in  question  was  not  acknowledged  or  proved 
before  a  justice  of  the  peace  of  the  proper  county,  but  in  open 
court,  and  instead  of  being  certified  under  the  hand  and  seal  of 
a  justice,  the  seal  of  the  court  was  affixed  to  the  certificate 
which  does  not  state  by  whom  it  was  acknowledged.    It  has,  in- 

101 


93  SUPREME  CX)URT  [IhUaddphia, 

[Duffield  and  others  t>.  Brindley  and  otliere.] 

r^(jo-|  deed,  been  held,  that  an  acknowledgment  *before  a  judge 
L  J  of  the  Supreme  Court,  is  good ;  but  that  wa.s  upon  the 
ground  that  the  judges  of  that  court  are  justices  of  the  peace 
throughout  the  state.  It  does  not,  however,  appear  that  the 
judges  of  the  court  before  M'hom  this  acknowledgment  Mas  taken, 
were  justices  of  the  peace.  The  circumstances  of  the  deed  hav- 
ing been  acknowledged  agreeably  to  a  pre-existing  law,  does  not 
entitle  it  to  be  recorded  under  the  act  of  1715,  which  authorizes 
such  deeds  only  to  be  recorded  as  shall  be  acknowledged  or  proved 
in  the  manner  pointed  out,  and  makes  no  provision  for  deeds 
already  acknowledged  or  proved.  If  the  evidence  l)e  rejected  the 
defendants  have  no  reason  to  complain.  The  fullest  opportunity 
was  aflPorded  to  have  the  deed  in  question  regularly  recorded. 
No  less  than  19  years  elapsed  after  its  acknowledgment  before 
the  passage  of  the  act  of  1715,  and  it  was  not  until  25  years 
more  had  passed  away  that  it  was  put  on  record.  If  under 
such  circumstances  it  is  in  the  power  of  a  party  to  make  a  copy 
evidence,  a  wide  door  to  fraud  is  oj)cned.  The  fact  that  other 
deeds  have  been  recorded  under  similar  circumstances,  does  not 
prove  a  co-temporaneous  construction  of  the  law.  The  acts  of 
interested  individuals,  wdio  are  endeavouring  to  repair  the  effects 
of  their  own  laches,  and  to  make  evidence  for  themselves  and 
those  who  are  to  come  after  them,  cannot  fairly  be  considered 
as  giving  a  construction  to  the  law.  How  little  this  sort  of  con- 
struction will  weigh  with  the  court,  is  shown  in  Kirk  v.  Dean,  2 
Binn.  340,  in  which,  although  out  of  611  conveyances  by  hus- 
band and  wife  after  the  act  of  the  24th  of  February,  1 770,  only 
25  conformed  to  the  provisions  of  the  law,  a  majority  of  the 
court  held  that  this  could  have  no  influence  with  them  in  con- 
struing the  act.  To  say  that  the  paper  was  admissible  as  an 
exemplification  of  an  ancient  deed,  under  which  the  possession 
has  gone,  is  begging  the  question.  There  was  no  evidence  what- 
ever as  to  the  possession. 

The  deed  from  Pusey  to  Jones  is  not  liable  to  the  same  objec- 
tion. It  was  recorded  while  the  laws  authorizing  deeds  acknowl- 
edged as  that  was,  to  be  recorded,  were  in  full  force. 

Barclay,  (with  whom  were  Binney  and  Chauncey,)  for  the  de- 
fendants. 

The  plaintiffs'  claim  is  a  very  stale  one,  and  not  entitled  to 
any  favour.  More  than  130  years  have  elapsed  since  those 
under  whom  they  claim  parted  with  their  interest.  The  plaintiffs 
have  never  been  in  possession,  nor  have  they  ever  had  a  right 
of  possession.  The  defendants  have  always  been  in  possession 
under  their  title.  The  court  will  presume  everything  in  their 
favour,  even  if  the  case  be  doubtful.  The  Mayor  of  Hull  v. 
102 


Dec.  29,  1828.]      OF    PEN^NSYLVANIA.  93 

[Duffield  and  others  v.  Brindley  and  others.] 

Horner,  Cowp.  102.     But  in  this  case  no  doubt  can  possibly 
exist  because, 

1 .  The  deed  from  Jones  to  Lloyd  was  entitled  to  record  under 
the  act  of  assembly  of  1693,  and  if  so  an  exemplification  was 
evidence. 

2.  The  deed,  even  according  to  the  plaintiffs'  construction  of 
the  act  of  assembly,  was  entitled  to  record  under  the  act  of 
1715. 

*3.  It  was  evidence,  being  the  exemplification  of  an  r^n ^t 
ancient  deed,  which  had  been  lost.  '-       -• 

1.  It  is  admitted  that  the  original  deed  has  been  lost.  The 
deed  was  acknowledged  in  open  coiinty  court  on  the  23d  of  June, 
1696,  agreeably  to  the  directions  of  the  act  of  the  10th  of 
March,  1683,  (Hall  &  Sellers'  Edition  of  the  Laws,  Appendix  9), 
and  was  entitled  to  record  under  the  act  of  1693.  (Hall  <fe 
Sellers'  Ed.  of  the  Laws,  App.  14).  The  law  did  not  make  it 
necessary  to  record  any  deed,  but  if  recorded,  it  made  an  ex- 
emplification evidence.  The  act  of  1693,  has  never  been  re- 
pealed. There  is  no  repealing  clause  in  the  act  of  1715,  and  no 
mode  is  pointed  out  by  that  act  for  the  recording  of  deeds  exe- 
cuted prior  to  1715.  The  legislature,  if  they  had  intended  to 
repeal  the  act  of  1693,  would  have  pointed  out  some  mode  for 
the  record  of  deeds  prior  to  that  act ;  the  repeal  would  have 
been  stated  expressly,  if  so  intended.  There  is  no  incompati- 
bility in  the  existence  of  the  two  laws  together.  A  deed  ac- 
knowledged prior  to  1715,  and  acknowledged  in  conformity  to 
the  act  of  1683,  is  entitled  to  record.  That  the  construction 
the  defendants  contend  for  is  the  true  one,  the  record  will  show. 

2.  The  deed  was  acknowledged  before  a  justice  of  the  peace, 
because  the  county  court  was  held  by  justices  of  the  peace,  and 
by  them  only.  Act  of  the  10th  of  May,  1684,  sect.  156,  MS. 
Act  of  1700,  Hall,&  Sell.  p.  4. 

In  support  of  the  3d  point,  that,  as  the  exemplification  of  an 
ancient  deed,  the  paper  was  evidence,  he  cited  Garwood  v.  Dennis, 
4  Binn.  314,  particularly  the  opinion  of  C.  J.  Tilghman. 

The  opinion  of  the  court  was  delivered  by 

Smith,  J. — It  was  truly  observed  on  the  argument  here,  that 
the  claim  of  the  plaintiffs,  was  a  stale  one,  and  not  entitled  to 
favour,  for  since  the  deed  from  Daniel  Jones,  (under  whom  the 
plaintiffs  claim,)  to  David  Lloyd,  more  than  one  hundred  and 
thirty  years  have  elapsed.  At  that  time  he  parted  with  his  in- 
terest in  the  lot  of  ground ;  and  there  is  no  evidence  that  he 
subsequently  conveyed,  or  offered  to  convey,  the  property  in 
dispute,  to  any  other  person,  or  ever  claimed  it ;  but  the  defend- 
ants, or  those  under  whom  they  claim,  have  continued  in  the 

103 


94  SUPREME  COURT  [Pkiladdphia, 

[Duffield  and  others  v.  Brindley  and  others.] 

possession  thereof  under  their  title.  The  deed  which  is  admitted 
to  have  been  lost,  appears  to  have  been  acknowledged  in  open 
court  in  August,  1696,  according  to  an  act  of  assembly  of  the  10th 
of  March,  1683,  and  under  an  act  of  assembly  passed  in  1693,  it 
might  have  been  recorded.  The  act  of  1715,  does  not  in  terms 
repeal  the  act  of  1693,  nor  does  it  direct  how  deeds,  executed 
and  acknowledged  before  the  year  1715,  shall  be  recorded  ;  and 
why  then  a  deed  acknowledged  prior  to  the  year  1715,  and 
in  conformity  to  the  directions  of  the  act  of  1683,  should  not  be 
entitled  to  record,  I  confess  I  cannot  see.  The  plaintiffs'  deed 
was  acknowledged  in  the  same  manner;  other  deeds  of  that 
period  have  been  acknowledged  in  the  same  way,  and  recorded 
r*Q^1  *^^^'"  1715,  as  appears  from  deed  books  produced  by  the 
L  J  defendants,  in  which  more  than  sixty  deeds  were  ac- 
knowledged as  the  defendants  was,  and  recorded  after  the  re- 
cording act  of  1715. 

In  1696,  when  this  deed  was  acknowledged,  the  county  court, 
before  whom  it  was  done,  was  held  by  the  justices  of  the  peace, 
and  by  no  other  persons,  as  appears  from  the  156th  section  of 
the  act  passed  on  the  10th  day  of  May,  1684,  and  it  may,  there- 
fore, with  great  propriety,  be  said,  that  the  deed  wgs,  in  fact, 
acknowledged  before  a  justice  of  the  peace,  and  this,  it  is  ad- 
mitted, would  be  a  sufficient  acknowledgment :  if  so,  it  is  too 
late,  at  this  time  of  day,  to  say,  that  the  deed  in  question,  was 
not  duly  recorded.  If  duly  recorded,  it  is  hardly  necessary  to 
add  an  exemplification  thereof,  w^as  evidence.  We  then  have 
the  cas6  of  a  lost  deed,  bearing  date  in  June,  1696,  of  course  a 
very  ancient  deed,  with  which,  it  appears,  the  possession  of  the 
property  has  gone  ever  since.  In  such  a  case,  a  oourt  presumes, 
after  the  lapse  of  so  great  a  length  of  time,  everything  to  have 
been  done  correctly,  as  was  decided  by  this  court,  in  Garwood 
V.  Dennis,  4  Binn.  Rep.  314.  On  every  principle  of  law  appli- 
cable to  this  case,  the  exemplification  of  the  deed  was  competent 
evidence :  a  new  trial  cannot,  therefore,  be  granted ;  but  the 
rule  must  be  discharged,  and  judgment  rendered  for  the  defend- 
ants on  the  verdict. 

New  trial  refused,  and  judgment  for  defendants. 

Cited  by  Counsel,  2  Barr,  251. 


104 


Dec.  29,  1828.]     OF   PENNSYLVANIA.  95 


[Phtladelphia,  December  29,  1828  ] 

Smull  against  Mickley  and  Another. 

It  is  no  objection  to  tlie  validity  of  the  title  of  a  purchaser  at  sheriff's  sale, 
that  tlie  venditioni  exponas  wiis  not  returned  until  long  after  the  acknowledg- 
ment of  the  sheriff's  deed,  and  long  after  the  sheriti'  who  made  the  sale,  had 
gone  out  of  office. 

This  was  an  ejectment  originally  brought  in  the  Court  of 
Common  Pleas  oi  Lehigh  county  to  December  Term,  1825,  and 
removed  by  habeas  corpus  cum  causa,  to  the  Circuit  Court  of 
the  same  county,  where  it  was  tried  on  the  16th  of  April,  1828, 
before  the  Chief  Justice. 

The  plaintiff,  on  the  trial  of  the  cause,  claimed  the  land  in 
controversy  as  devisee  under  the  will  of  George  Smull,  deceased, 
and  gave  in  evidence  the  said  will,  dated  August  3d,  1815,  and 
proved  October  12th,  1815. 

The  defendants  set  up  the  following  title  in  themselves  : — 
George  Smull,  being  indebted  at  the  time  of  his  death  to  Jacob 
Schrieber,  an  amicable  action  in  debt  was  entered  in  the  Court 
of  Common  Pleas  of  Lehigli  county,  in  which  said  Schrieber 
was  plaintiff,  and  Peter  Smidl,  executor  of  the  last  will,  of  the 
said  George  Smull,  deceased,  was  defendant  to  December  Term, 
1817.  Judgment  by  *confession  was  entered  in  this  suit  r^qfii 
on  January  9th,  1818,  for  the  plaintiff,  in  the  sum  of  ^  -^ 
eight  hundred  and  sixty-three  dollars  seventy-two  cents,  with 
costs,  &c.  A  fieri  facias  was  issued  on  this  judgment  to  August 
Term,  1818,  and  the  sheriff  levied  upon  two  tracts  of  woodland 
as  the  property  late  of  George  Smull,  deceased.  One  of  these 
tracts,  supposed  to  contain  seventeen  acres  eighty  perches,  com- 
prised the  land  for  whicli  this  ejectment  was  brought.  The 
property  levied  on  being  woodland  and  so  returned  by  the 
sheriff,  no  inquisition  was  held  upon  it,  and  a  venditioni  exjjonas 
to  November  Term,  1818,  was  issued,  u])on  which  a  sale  was 
made  by  the  sheriff,  which  was  set  aside  by  the  court.  The 
entry  on  the  docket  was  as  follows  :  ^'December  1st,  1818.  On 
motion,  sale  and  execution  in  the  above  case,  set  aside."  An 
alias  venditioni  exponas  was  then  issued  to  February  Term, 
1819,  in  virtue  of  which  the  sheriff  again  sold  the  said  tract  of 
woodland,  containing  about  seventeen  acres  eiglity  perches,  to 
Jacob  Schrieber,  plaintiff  in  the  suit,  for  ten  hundred  and  eighty- 
five  dollars. 

On  the  2d  of  February,  1819,  a  rule  was  obtained  to  show 
cause  why  this  sale  should  not  be  set  aside,  in  relation  to  whicli, 
on  same  day,  an  entry  was  made  in  the  docket  in  these  words  : 

105 


96  SUPREME  COURT  IFhUadelphia, 

[Smull  V.  Mickley  and  another.] 

"  Rule  discliarged,  and  defendants  to  have  two  montlis  to  pay 
the  debt,  interest,  and  costs;  and  if  paid,  sheriff  to  return  ven- 
ditioni exponas  unsold  for  want  of  buyers ;  otherwise  sale  con- 
firinc<l,  and  sheriff  to  deliver  the  deed  accordingly."  The 
sheriff,  on  the  3d  of  February,  1819,  executed  a  deed  for  the 
said  seventeen  acres  eighty  perches,  and  acknowledged  it  on  the 
same  day  in  open  court,  but  retained  the  same  until  the  two 
months  had  expired,  when  the  defendants  in  Schrieber  v.  Smull's 
Executors,  not  having  complied  with  the  above  order  or  decree 
of  court,  he  delivered  it  to  the  purchaser,  Schrieber.  The  alias 
venditioni  exponas  was  returned  November  27th,  1827,  long 
after  the  sheriff  had  gone  out  of  office.  Jacob  Schrieber  and 
wnfe  conveyed  part  of  this  land  to  Jacob  Mickley,  one  of  the 
defendants  in  the  present  cause,  and  the  remainder  to  Henry 
Byle,  the  other  defendant.  The  deeds  by  which  these  convey- 
ances were  made,  were  both  dated  on  the  3d  of  June,  1820.  and 
were  duly  recorded. 

The  jury,  under  the  direction  of  the  Chief  Justice,  found  a 
verdict  for  the  plaintiff,  and  the  defendants'  counsel  moved  for 
a  new  trial,  which  having  been  refused,  an  appeal  was  entered 
to  the  court  in  bank,  where  the  cause  was  argued  by  Stroud  for 
the  appellants  and  Brooke  and  J.  31.  Porter  for  the  appellees 
upon  several  points,  only  one  of  which,  however,  is  noticed  in 
the  opinion  of  the  court,  which  was  delivered  by 

Tod,  J. — In  this  ejectment  the  plaintiff  claimed  the  land 
under  the  will  of  his  father,  George  Smull,  deceased.  The  de- 
fendants held  under  a  sheriff's  deed,  in  pursuance  of  a  judgment 
against  Peter  Smull,  the  executor  of  George  Smull,  for  a  debt 
of  the  testator.  On  the  trial  in  the  Circuit  Court,  sundry  ob- 
r*Q7l  jsctions  were  *made  by  the  plaintiff  to  the  validity  of 
>-  -I  the  defendants'  title  under  the  sheriff's  sale.  All  these 
objections  are  deemed  by  us  unavailable.  They  were  all  deemed 
so  by  the  judge  who  tried  tlje  cause,  except  one.  The  venditioni 
exponas  on  which  the  land  was  sold,  had  not  been  returned  by 
the  sheriff'  until  after  the  acknowledgment  of  his  deed  in  court. 
In  fact,  there  was  no  return  of  it  till  long  after  the  sheriff's 
office  had  expired.  The  judge  decided  this  to  be  a  fatal  defect. 
Upon  further  reflection,  he  now  thinks  his  decision  to  have  been 
erroneous,  and  we  all  think  so.  The  negligence  of  sheriffs  to 
return  their  writs  of  venditioni  exponas,  after  sales  of  land,  has 
been  by  no  means,  uncommon  in  many  counties.  It  is  a  negli- 
gence much  to  be  censured.  The  papers  ought  to  be  in  their 
proper  places.  Some  courts  have  made  a  general  rule  against 
receiving  the  acknowledgment  of  a  deed  before  the  writ  is  re- 
turned. But  it  would  seem  hard  to  begin  Jiow  to  visit  this  old 
106 


Dec.  29,  1828.]      OF  PEXXSYLVANIA.  97 

[SmuU  V.  Mickley  and  another.] 

fault  of  the  slieriif  upon  the  vendee,  wlio  lias  no  agency  in  the 
matter,  and  who  may  well  be  allowed  to  presume  that  every 
thing  done  by  the  court  is  done  in  due  form.  To  sustain  the 
objection  might  be  very  hurtful  to  the  security  of  titles.  The 
returii  is  not  always  made  a  matter  of  record  any  further  than 
by  indorsement  on  the  writ.  I  believe  the  preoise  date  of  the 
return  is  never  set  down.  Whatever  of  form  or  substance  there 
can  be  in  a  venditioni  exponcts  may  be  made  out  by  the  fieri 
facias  and  docket  entry,  aided  by  the  common  forms  of  the 
office,  without  the  writ.  For  all  purposes  of  information  to  the 
court  the  sheriff's  deed  is  a  return.  It  is  produced,  read  in 
court,  and  entered  on  the  record.  It  recites  the  sale,  the  mode 
and  time  of  it,  the  name  of  the  purchaser,  the  price  and  the 
payment  of  the  money. 

Judgment  reversed,  and  a  new  trial  awarded. 

Cited  by  Counsel,  2  M.  266 ;  8  W.  281 ;  11  S.  101. 

Cited  by  the  Court,  1  Par.  47 ;  1  J.  26. 

Cited  by  Lower  Court,  18  S.  11. 

Commented  on  and  followed  in  2  Wright,  54 ;  and  the  case  approved,  3  S. 
305. 

Where  the  sheriff  makes  no  return  of  the  execution,  making  the  deed  m^ 
be  considered  iis  the  same  thing,  since  it  fixes  him  with  the  price :  Hinds  v. 
Scott,  IJ.  19;  Gibson  i-.  Winslow,  2  Wr.  49. 

The  cases  are  numerous,  and  are  to  be  found  in  any  digest,  that  mere  irregu- 
larities before  the  sale  do  not  affect  the  title  of  a  purchaser :  Bright.  Dig., 
Executions  Xlll.  b. 


[PhUvAdelphia,  December  29,  1828.] 

Adams  against  The  Pennsylvania  Insurance  Company. 

The  disappointment  of  a  reasonable  hope  of  obtaining  a  cargo  for  the  owner 
of  the  vessel  himself,  at  the  port  to  which  she  is  sailing,  with  specie  on  board 
to  purchase  a  cargo,  but  'where  no  cargo  has  been  purclia,sed,  nor  a  positive 
contract  made  for  the  purchase  of  one,  does  not  authorize  a  recovery  on  a 
vahiod  policy  on  freight,  where  the  ship  is  lost  on  the  voyage  to  the  port 
of  destination. 

It  seems,  that  a  gaming  policy  is  not  good  in  Pennsylvania. 

The  plaintiflp,  Robert  Adams,  brought  this  action  against  the 
Insurance  Company  of  Pennsylvania,  on  a  policy  of  insurance 
dated  September  2d,  1822,  on  the  freight  of  the  brig  Shamrock, 
*valued  at  four  thousand  dollars,  on  a  voyage  at  and  r*qq, 
from  Gibraltar  to  Bordeaux,  at  and  from  thence  back  '  -■ 
to  Philadelphia,  at  a  premium  of  two  per  cent. 

The  plaintiff  was  the  owner  of  the  Shamrock,  which  he  sent 
to  Gibraltar  in  the  spring  of  1822,  with  a  cargo  belonging  to 

107 


98  SUPREME  COURT  [PIdladelphm, 

[Adams  v.  The  Pennsylvania  Insurance  Company.] 

himself,  to  be  sold  at  that  place.  The  letter  of  instructions 
dated  May  9th,  1822,  to  the  master,  R.  Pickle,  was  to  the  fol- 
lowing effect :  "  Whither  your  course  may  be  directed  from 
Gibraltar,  will  depend  on  advices  from  my  friends  Dow  ling  & 
Sons  of  Bordeaux.  1  have  directed  them,  if  brandies  are  low, 
to  purchase  four  hundred  pipes  for  your  return  cargo.  If  high, 
you  are  to  shape  your  course  to  St.  Petersburgh,  and  bring 
home  hemp  and  iron.  If  you  can  get  goods  on  freight,  not  to 
interfere  with  my  goods,  do  so.  If  no  advices  are  received  from 
Dowling  &  Sons,  I  leave  the  course  to  you,"  &c.  Many  let- 
ters from  the  plaintiff  to  Dowling  &  Sons,  and  to  the  master, 
and  some  from  Dowling  &  Sons  to  the  master,  w^ere  read  in 
evidence.     The  plaintiff  at  first  directed  Dowling  &  Sons  to 

{)urchase  for  him  four  hundred  pipes  of  brandy,  if  they  could  be 
lad  for  two  hundred  and  fifty  francs.  In  consequence,  how- 
ever, of  the  low  price  of  brandies  here,  and  the  quantity  in  the 
market,  he,  in  a  letter  to  Captain  Pickle,  limited  him  to  tAvo 
hundred  and  forty  francs,  and  stated  that  he  would  prefer  hav- 
ing not  more  than  one  hundred  pipes  put  on  board  on  his  own 
account,  wishing  the  vessel  to  be  loaded  with  brandy  or  other 
goods  on  freight.  A  letter  to  the  same  effect  was  written  by 
the  plaintiff  to  Dowling  &  Sons.  Brandy  fell  at  Bordeaux 
to  two  hundred  and  thirty  francs.  No  cargo  was  ever  pur- 
chased. 

The  Shamrock  sailed  from  Gibraltar  for  Bordeaux  on  the 
28th  of  June,  without  a  cargo,  but  having  on  board  twenty 
thousand  dollars  in  specie,  to  purchase  a  cargo.  On  the  7th  of 
July,  she  was  lost  near  Aveiro  in  Portugal.  One  keg  of  specie, 
containing  four  thousand  dollars,  was  lost,  and  the  remainder 
saved.  The  voyage  was  broken  up,  and  the  plaintiff  claimed 
for  a  total  loss  of  the  freight  insured.  The  jury  found  a  verdict 
in  his  favour,  subject  to  the  opinion  of  the  court  upon  the  whole 
evidence  ;  if  the  opinion  of  the  court  should  be  with  the  plain- 
tiff, judgment  to  be  entered  for  the  plaintiff;  if  with  the  defend- 
ants, judgment  to  be  entered  for  the  defendants. 

J.  JR.  Ingersoll,  and  C.  J.  Ingersoll,  for  the  plaintiff. — This 
was  nominally  an  insurance  on  freight.  In  reality  it  was  not 
so,  nor  was  such  the  understanding  of  the  parties.  The  plain- 
tiff was  the  owner  of  both  vessel  and  cargo.  Freight  is  a  com- 
j)ensation  paid  by  the  owner  of  the  goods  to  the  owner  of  the 
vessel  for  their  transportation.  The  term  itself  implies  an 
absence  of  unity  of  person  and  ownership.  Yet  the  convenience 
of  commerce  has  introduced  a  practice,  seemingly  paradoxical, 
but  which,  when  understood,  is  productive  of  advantages,  both 
to  the  owner  and  underwriter :  to  the  owner,  security,  indem- 
108 


i)ec.  29, 1828.]        OF   PENXSYLVANFA.  99 

[Adams  v.  The  Pennsylvania  Insurance  Company.] 

nity,  and  protection  :  to  the  insurer,  an  *ad(litional  sub-  r^qq-i 
ject  of  profitable  speculation  ;  another  means  of  receiv-  L  '  ' 
iug  a  premium,  and  retaining  it,  if  the  adventure  be  prosperous, 
and  of  subdividing  his  average  in  ease  of  loss.  The  owner  who 
takes  the  merchandize  of  others,  contracts  to  receive  a  compen- 
sation in  freight.  When  he  ships  goods  of  his  own,  he  must 
rely  on  their  profits  for  his  compensation.  This  is  a  clear,  de- 
fined, and  lawful  interest,  fairly  to  be  calculated  on,  and  there- 
fore a  fair  subject  of  insurance.  Such  an  interest  is  insured 
directly,  under  the  name  of  profits,  where  goods  are  on  board 
out  of  which  profits  may  arise  ;  or  indirectly  under  the  name  of 
freight,  which  is  resorted  to  where  it  is  not  certain  whether 
goods  will  be  on  board  or  not,  but  where  a  reasonable  expecta- 
tion exists  that  such  will  be  the  case  in  any  part  of  a  continued 
voyage  or  series  of  voyages  forming  an  entire  transaction.  If 
the  voyage  be  interrupted  by  a  peril  insured  against,  the  under- 
writer pays,  though  there  has  never  been  a  bale  of  goods  on 
board ;  and  though  if  there  has  been,  belonging  to  the  ship 
owner,  his  goods  would  have  paid  no  freight.  The  case  before 
the  court  is  of  the  latter  description.  The  contract,  its  con- 
struction, and  the  judgment  to  be  pronounced  upon  it,  depend 
upon  an  artificial  principle ;  not  upon  the  ordinary  rule  of  in- 
demnity for  loss  of  freight.  A  recovery  is  justified  by  the  dis- 
appointment of  a  reasonable  hope ;  by  the  failure  of  judicious 
calculations.  If  that  hope  be  rendered  abortive,  and  those  cal- 
culations vain  by  any  of  the  causes  which  the  underwriter  has 
pledged  himself  shall  not  occur,  he  is  responsible.  This  reason- 
able hope  may  rest  on  the  possession  of  goods,  or  a  temporary 
letting  of  the  vessel  at  a  price  to  be  paid  in  tlie  event  of  carry- 
ing merchandize,  or  on  such  a  train  of  events,  anticipated  in 
regular  succession  and  already  begun,  as  in  the  natural  and 
ordinary  course  of  things,  wall  lead  to  the  transportation  of  a 
cargo,  and  the  advantages  which  are  its  necessary  result.  Such 
a  reasonable  expectation  of  obtaining  a  cargo  existed  in  the 
present  case,  as  to  entitle  the  plaintiif  to  recover.  By  the  letter 
of  instructions,  the  proceedings  of  Captain  Pickle  were  to  de- 
pend on  the  advices  he  should  receive  from  Dowling  &  Sons, 
relative  to  the  price  of  brandy  at  Bordeaux,  and  if  it  continued 
at  two  hundred  and  fifty  francs,  four  hundred  pipes  were  directed 
to  be  purchased  for  a  return  cargo.  The  plaintiff's  letter  of  the 
24th  of  April,  1822,  to  Dowling  &  Sons,  infonns  them  that  the 
Shamrock  will  reach  Bordeaux  in  June  or  July,  with  from 
twenty  to  twenty-five  thousand  dollars  in  specie,  and  instructs 
them  to  purchase  from  two  hundred  and  fifty  to  three  hundred 
short  pipes,  even  if  the  pi"ice  should  advance  a  little.  In  his 
letter  of  the  30th  of  the  same  month,  the  plaintiff  writes  to 

109 


99  SUPREME   COURT  [Philadelphia, 

[Adams  v.  The  Pennsylvania  Insurance  Company.] 

that  house  to  lose  no  time  in  procuring  for  him  four  hundred 
pipes,  unless  they  think  brandy  will  be  still  lower.  On  the  6th 
of  May,  the  plaintiff  writes,  that  in  full  ex])ectation  of  the  re- 
eei})t  of  the  brandy,  the  Shamrock  will  sail  on  the  10th  for 
Giljraltar,  carrying  enough  to  protluce  funds  for  the  purchase  of 
four  hundred  pipes  of  brandy ;  and  in  his  letter  of  the  9th  of 
r*inm  ^^^Y)  ^^^  expresses  *a  hope  that  his  correspondents  have 
L  J  made  the  purchase.  On  the  23d  of  May,  after  the 
Shamrock  had  sailed,  he  writes  again,  treating  his  former  com- 
munications as  an  order,  and  expresses  a  hope  that  they  may 
not  have  executed  his  order  before  receiving  this  letter ;  adding 
that  one  hundred  pipes  will  probably  be  enough.  His  letter  of 
the  25th  of  May,  directed  to  Captain  Pickle  at  Gibraltar,  directs 
him  not  to  go  to  Bordeaux,  unless  the  brandy  is  purchased,  or 
can  be  laid  in  at  two  hundred  and  fifty  francs.  In  his  letter  of 
the  31st  of  May,  to  the  captain,  he  considers  the  voyage  to 
Bordeaux  at  an  end,  under  the  belief  that  such  will  \ie  the 
directions  of  Dowling  &  Sons.  Yet,  in  a  letter  dated  the  6th 
of  June,  he  recurs  to  his  first  orders,  and  instructs  Captain 
Pickle,  if  the  Bordeaux  house  should  invite  him,  to  accept  the 
invitation.  On  the  same  day  he  writes  to  that  house  that  he 
does  not  imagine  they  have  had  it  in  their  pow-er  to  execute  his 
last  order  with  the  Shamrock,  or  to  direct  that  vessel  to  proceed 
to  their  port  from  Gibraltar,  where  she  has  gone  for  the  pur- 
pose. They  are  again  told  that  her  destination  is  in  their 
hands.  The  same  idea  is  repeated  in  his  letter  of  the  23d  of  June, 
in  which  it  is  added,  the  four  hundred  pipes  ordered,  cannot 
come  amiss  of  doing  well.  On  the  16th  of  August,  Mr.  Adams 
informs  Messrs.  Dowling  &  Sons  of  the  sailing  of  the  brig  with 
funds,  their  kind  and  disposition,  the  small  number  of  vessels 
in  port,  and  the  low  price  of  brandy,  which  he  thinks  will  in- 
sure a  full  cargo,  or  at  least  four  hundred  pipes  at  two  hundred 
and  thirty  francs.  These  letters  show  the  desire  and  expecta- 
tion of  a  cargo,  orders  given  to  procure  one,  and  the  remittance 
of  ample  funds  for  that  purpose.  His  insurance  on  the  2d  of 
September,  proves  his  firm  belief  that  the  brandy  had  been 
procured,  and  the  light  in  which  he  regarded  the  order  he  had 
given.  The  letters  of  Messrs.  Dowling  &  Sons,  show  the 
acceptance  of  these  orders,  and  though  some  doubt  at  first  hung 
upon  the  destination  of  the  Shamrock,  it  was  removed  by  her 
actually  sailing  for  Bordeaux  and  not  St.  Petersburgh.  In 
their  letter  of  the  12th  of  June,  to  Captain  Pickle,  they  say 
they  hope  to  see  him  in  July,  and  expect  to  give  him  quick 
despatch ;  and  in  that  of  the  22d  of  June  to  the  plaintiff,  they 
advert  to  the  sailing  of  the  brig  on  the  10th  of  INIay  for  Gibral- 
tar, with  orders  to  proceed  to  Bordeaux  with  funds  to  purchase 

no 


Dee.  2%  1828.]      OF  PENNSYLVANIA.  100 

[Adams  v.  The  Pennsylvania  Insurance  Company.] 

brandy,  which  they  say  has  fallen  to  two  hundred  and  thirty 
francs,  and  may  be  under,  and  they  postpone  operating  under 
the  hope  of  getting  it  lower.  After  this  correspondence,  Messrs. 
Dowling  &  Sons  would  have  been  liable  for  an  omission  to  com- 
ply with  the  plaintiff's  orders,  in  case  the  vessel  had  arrived. 
Her  arrival,  however,  was  prevented  by  her  loss,  intelligence  of 
which,  they  inform  Mr.  Adams  in  their  letter  of  the  31st  of 
August,  had  reached  them  from  Lloyd's  coifee  house ;  and  they 
express  their  regret  at  the  event,  as,  if  she  had  arrived  at  Bor- 
deaux in  the  common  course  of  time,  she  would,  in  all  proba- 
bility, have  been,  ere  that  time,  safe  in  Philadelphia,  with  a 
cargo  *of  brandy  not  costing  more  than  two  hundred  r*if\-|-| 
and  thirty  francs,  if  so  much.  Upon  this  state  of  ^  J 
things,  the  plaintiff  is  entitled  to  recover,  1.  Because  an  entire 
voyage  was  broken  up,  in  a  part  of  which,  a  contract  existed 
for  a  cargo,  on  which  an  equivalent  for  freight  would  have  been 
received.  2.  Because,  at  the  time  of  the  loss,  a  cargo  of  specie 
was  on  board,  which  never  reached  the  port  of  destination,  and 
the  equivalent  for  freight  was  lost.  1.  That  ideal,  contingent 
results  growing  out  of  substantial  possessions,  are  legitimate 
subjects  of  insurance,  is  well  settled.  Barclay  v.  Cousins,  2 
East,  544.  In  Grant  v.  Parkinson,  Park  on  Ins.  402 ;  Phil- 
lips on  Ins.  46,  the  plaintiff,  who  had  a  contract  to  supply  the 
army  with  spruce  beer,  insured  his  profits  on  a  cargo  of  mo- 
lasses, and  recovered.  In  Eyre  v.  Glover,  16  East,  218,  the  in- 
surance was  merely  on  "profits,"  without  stating  what  they  were 
to  grow  out  of.  Fosdick  v.  Norwich  Marine  Insurance  Company, 
3  Day,  108  ;  Abbott  v.  Sebor,  3  Johnis.  Cas.  39  ;  Tom  v.  Smith, 
3  Caines'  R,  24f5,  are  all  to  the  point  that  profits  may  be  in- 
sured. In  these  cases  there  was  something  actually  at  risk, 
out  of  which  the  insurable  interest  was  to  rise.  But  where  the 
insurance  is  on  freight,  even  that  is  not  a  prerequisite.  Insurance 
was  effected  on  the  freight  of  a  ship  chartered  to  go  to  Tene- 
riffe,  and  there  take  a  cargo  for  the  West  Indies.  She  was  lost 
on  the  voyage  to  Teneriffe,  before  the  cargo  was  taken  on 
board.  The  interest  was  held  to  have  commenced,  and  the 
assured  recovered.  Thompson  v.  Taylor,  6  T.  R.  478  ;  Condy's 
Marsh.  279.  In  that  case  there  was  a  charter  party ;  but  it 
makes  no  difference  whether  the  agreement  to  supply  a  vessel 
with  a  cargo  or  to  pay  a  freight,  be  under  seal,  or  in  writing 
without  seal,  or  only  verbal.  M'Kenzie  v.  Shedden,  2  Campb. 
431 ;  Patrick  v.  Eams,  3  Campb.  4^1 ;  Moses  v.  Pratt,  4  Campb. 
297.  In  Montgomery  v.  Egginton,  3  T.  R.  362,  freight  was  in- 
sured, valued  at  fifteen  hundred  pounds.  There  were  goods  on 
board,  the  freight  of  which  would  have  been  only  five  hundred 
pounds.    The  vessel  was  lost ;  and  it  was  held,  that  an  insurable 

111 


101  SUPREME  COURT  ^Philadelphia, 

[Adams  v.  The  Pennsylvania  Insurance  Company.] 

interest  in  the  whole  liad  accrued.     There  the  whole  cargo  had 
been  purchased.     But  in  Truscott  v.  Christie,  2  Brod.  &  Bing. 
320,  freight  and  passage  money  were  insured  from  India  to 
Europe.     Before  the  alterations  necessary  to  receive  the  passen- 
gers were  completed,  the  ship  was  lost,  and  the  underwriters 
were  held  liable  for  the  freight  and  passage  money,  merely  on 
the  ground  of  a  contract  having  been  entered  into.     And,  in 
Parke  v.  Hebson,  a  case  cited  by  Richardson,  J.,  and  not  re- 
ported, where  a  seeking  ship  which  was  to  go  to  several  places, 
and  no  definite  contract  had  been  made  for  the  M'hole  amount 
of  freight,  was  lost  at  Jamaica,  with  part  of  her  cargo  on 
board,  the  plaintiff  recovered.      The  principle  established  by 
the  cases  cited  and  by  those  of  Hart  v.  The  Delaware  Ins.  Co., 
Condy's  Marsh.  281 ;  Davidson  v.  Willasey,  1   Maule  &  Selw. 
313 ;  Curling  v.  Long,  1  Bos.  &  Pull.  636  ;  Davy  v.  Hallett, 
Condy's  Marsh.  178,  and  Horneastle  v.  Suart,  8  East,  400,  is 
r*109l   *^^^^  wherever  there  is  a  well  grounded  expectation  that 
L         -I   freight  will  be  realized,  it  may  be  insured.     It  is  laid 
down  generally  in  Phillips  on  Ins.  44,  that  a  person  having  a 
contract  which  may  afford  an  emolument,  has  an  insurable  in- 
terest as  soon  as  he  has  incurred  expense,  or  taken  steps  towards 
the  execution  of  the  contract.     The  plaintiff  alleges  that  every- 
thing was  done  in  this  case  necessary  to  give  him  an  insurable 
interest.     The  negative  propositions  he  has  to  combat  are :  1. 
That  there  was  nothing  but  a  contingent  contract.     2.  That  no 
purchase  of  a  return  cargo  had  been  made.     Every  future  event 
is  contingent,  and  none  more  so  than  the  result  of  a  mercantile 
adventure.     In  the  present  instance  there  was  nothing  contin- 
gent which  depended  upon  the  will  of  the  insurer.     The  con- 
tingencies depended  upon  events  not  under  his  control.     The 
information  of  Dowling  &  Sons,  was  to  direct  the  movements  of 
the  Shamrock.     This  direction  was  given,  and  thus,  what  was 
before   uncertain,   became   fixed.     The   insurance   was   effected 
after  the  uncertainty  had  ceased.     All  was  then  resolved  into 
the  mere  contingency  of  the  arrival  at  Bordeaux,  a  contingency 
connected  with  every  case  in  which  a  cargo  is  not  actually  on 
board.     As  to  no  purchase  having  been  made,  there  are  many 
cases  in  which  the  same  feature  existed.      Where  there  is  a 
charter  party,  the  right  to  recover  is  not  denied ;  and  yet  the 
only  difference  between  a  chartered  ship  and  another  is,  that  the 
expectation  is  stronger.     No  case  can  be  found  of  a  vessel  sail- 
ing on  a  continued  voyage  with  part  of  a  cargo  on  board,  and 
an  agreement  for  a  cargo  in  a  latter  stage  of  it,  where  a  loss  in 
the  early  part  of  the  voyage  has  not  been  protected  by  the 
policy.     The  cases  are  either  of  a  single  voyage  with  a  part 
only  of  the  cargo  on  board,  or  a  continued  voyage  with  no  cargo 
112 


Dee.2d,lS28.]     OF   PENNSYLVANIA.  102 

[Adams  v.  The  Pennsylvania  Insurance  Company.] 

whatever  on  board  or  secured.  If  a  cargo  be  secured,  it  is  im- 
material whether  or  not  any  was  on  board  at  the  time  of  tlie 
loss.  Tlie  loss  of  the  ship  is  the  total  loss  of  the  i'reight. 
Marsh,  on  Ins.  586;  Phil,  on  Ins.  426  ;  The  Louisa,  1  Dodson's 
Ady.  Rep.  319;  Hunter  v.  Priusep,  10  East,  378. 

2.  There  was  a  cargo  of  twenty  thousand  dollars  on  board, 
which,  though  it  did  not  fill  the  vessel,  was  sufficient  to  pur 
chase  a  cargo  to  fill  her.  The  China  ships  carry  nothing  but 
money.  Freight  on  dollars  is  never  on  the  bulk,  but  a  per- 
centage on  the  amount,  no  matter  what  space  it  occu})ies.  If, 
instead  of  money,  the  brig  had  had  on  board  goods,  on  the  voy- 
age to  Bordeaux,  the  plaintiff  would  have  been  entitled  to 
recover ;  and  there  is  no  difference,  except  that  money  pays 
freight  per  cent.,  and  goods  per  ton.  The  freight  lost  u])on 
this  cargo  of  dollars  from  Gibraltar  to  Bordeaux,  by  the  agree- 
ment of  the  parties,  was  four  thousand  dollars.  There  is  no 
evidence  it  was  less,  and  it  was  valued  at  that  sum.  The  parties 
were  the  judges  of  the  value  of  the  subject  of  insurance,  and 
they  have  themselves  fixed  the  standard. 

Binney  and  Ohauncey  for  the  defendants. — In  this  cjise  two 
questions  arise.  1.  Whether  the  plaintiff'  is  entitled  to  recover 
his  insurance  in  consequence  of  the  expected  cargo  at  Bor- 
deaux. 2.  *Whether  he  can  recover  the  four  thousand  r^irvo-i 
dollars  insured,  by  reason  of  the  five  kegs  of  specie  on  L  'J 
board  on  the  voyage  from  Gibraltar  to  Bordeaux. 

1.  The  law  of  insurance  on  profits  may  be,  that  the  insured 
shall  recover,  if  the  goods  are  lost,  though  there  would  have  been 
no  profits  had  they  arrived.  This  is  certainly  not  the  law  of 
England.  It  may  possibly  be  the  law  in  New  York,  but  it  is  not 
settled  here.  It  may  be,  that  a  reasonable  expectation  of  profits 
on  a  cargo  already  shipped  on  a  voyage,  is  a  good  insurable  in- 
terest ;  but  a  reasonable  expectation  of  profits  on  a  cargo  ex- 
pected to  be  shipped,  never  was,  and  never  can  be  held  to  be  an 
insurable  interest.  Knox  v.  Woods,  1  Camp.  543,  is  an  ansAver 
to  all  such  expectations  of  expectations.  Grant  v.  Parkinson, 
Barclay  v.  Cousin,  P]yre  v.  Glover,  were  all  cases  in  which  the 
iusurance  was  on  the  profits  of  a  cargo  actually  shipped.  The 
insurance,  in  the  present  instance,  was  on  a  sober  interest  called 
freight,  which  must  stand  or  fall  by  its  own  law,  and  that  la\v  is 
thoroughly  settled.  There  Ls  nothing  fanciful  about  it.  The 
only  particular  in  which  it  appears  to  be  so,  is  in  regarding  the 
owner  of  the  ship  and  the  owner  of  the  goods  as  two  persons, 
even  where  they  are  one,  and  allowing  him  to  insure.  Still,  his 
interest  is  real.  The  policy  may  be  valued  or  open,  though  it  is 
usually  a  valued  policy.     If  valued  and  a  partial  loss  happen,  it 

VOL.  I.— 8  '  113 


103  SUPREME  COURT  [Philadelphia, 

[Adams  v.  The  Pennsylvania  Insurance  Company.] 

must  be  opened  to  ascertain  the  extent  of  the  loss/wliich  may  be 
estimated  after  it  has  hapj^ened,  as  well  as  valued  before.  The 
current  rate  of  freight,  at  a  particular  time,  may  be  as  easily 
ascertained  as  the  current  price  of  flour.  A  policy  on  profits  is 
alone  neciassarily  valued,  and  in  practice  always  contains  a 
special  clause  "free  from  average,"  &c.  Phillips  on  Ins.  319; 
Wain  V.Thompson,  9  Serg.  &  Rawle,  115.  The  question  then 
is,  whether  the  plaintiff  had  an  insurable  interest  in  the  freight 
of  the  Bordeaux  cargo.  Insurance  on  freight  covers  nothing  but 
the  freight  of  goods  on  board,  and  freight  contracted  to  be  j)aid, 
and  which,  or  its  equivalent,  would  be  payable,  whether  goods  be 
shipped  or  not.  If  the  perils  insured  against  prevent  the  owner 
from  earning  freight,  in  either  of  these  cases,  the  insurer  is  lia- 
ble, but  not  otherwise.  Such  a  foundation  of  freight  as  a  reason- 
able expectation  of  the  ship  owner  bringing  a  cargo  for  himself; 
or  a  contract  for  a  cargo  to  be  furnished  for  himself;  or  the  ex- 
istence of  a  cargo  belonging  to  him,  for  which  he  is  sailing,  is 
without  warrant  of  law.  The  contract  meant,  is  a  contract  by  a 
third  person  to  ship  on  freight,  not  to  supply  a  cargo  for  the 
owner  of  the  vessel,  to  ship  for  himself.  It  is  a  fixed  principle, 
that  the  assured  must  have  an  interest  at  the  risk  of  the  perils 
in  the  policy,  and  it  must  continue  and  be  subsisting,  at  the  time 
of  the  loss  :  Phillips  on  Ins.  26,  27.  The  freight  of  goods  shipped 
is  such  an  interest.  There  is  an  inchoate  right  to  freight,  and, 
if  not  prevented  by  peril,  the  owner  must  raise  freight  out  of  the 
interest  insured.  Where  freight  is  contracted  to  be  paid,  and  no 
goods  are  shipped,  there  is  no  inchoate  right  to  freight,  but  a 
r*l  04.1  ^^^^^  ^^  damages  *for  breach  of  contract.  In  reference 
L  -I  to  the  latter  description  of  claim,  some  judges,  particu- 
larly Lord  Elleuborough,  have  thought  the  cases  have  gone  too 
far.  The  difference  between  a  valued  and  open  policy,  is  nothing 
as  relates  to  the  question,  whether  the  insured  had  an  insurable 
interest  in  the  freight.  A  valuation  is  a  mere  estimate  of  the 
prime  cost  or  amount  of  the  thing  insured  to  save  the  proof  of 
actual  cost  or  amount.  It  does  not  preclude  the  inquiry  whether 
the  thing  was  at  risk  at  all,  nor  how  much  was  at  risk.  In 
the  case  of  Tonge  v.  Watts,  2  Stra.  1251,  decided  in^  1747,  by 
Chief  Justice  Lee,  no  goods  were  on  board ;  no  contract  of  af- 
freightment was  entered  into,  and  no  recovery  was  had.  This 
case  has  never  been  questioned  :  2  Wash.  C.  C.  Rej).  350.  It  is 
the  Magna  Charter  of  the  law,  delivered  by  a  great  commercial 
lawyer.  If  a  reasonable  expectation  was  sufficient,  there  was  in 
that  case,  much  more ;  the  very  goods  were  ready.  The  goods 
were  not  only  contracted  for,  but  provided.  The  case  of  Mont 
gomery  v.  Eggington,  3  D.  &  E.  362,  decided  by  I^ord  Kenyon 
in  1789,  in  which  the  plaintiff  recovered,  is  shortly  and  unsatis- 
114 


Dec.  29,  1828.]      OF  PENNSYLVANIA.  104 

[Adams  v.  The  Pennsylvania  Insurance  Company.] 

factorily  reported.  Whether  there  was  a  contract  of  affreight- 
ment, does  not  appear,  and  the  reasons  of  the  court  are  not  given. 
It  is  understood  to  have  been  a  case  of  contract.  If  it  was  not, 
it  is  not  law,  for  nothing  is  better  settled,  than  that  the  valu- 
ation of  an  entire  subject  does  not  entitle  the  insured  to  a 
recovery  for  the  whole,  if  part  only  is  on  board.  Thompson  v. 
Taylor,  6  D.  &  E.  478,  in  1795,  was  the  case  of  a  charter  party 
for  a  round  voyage,  and  for  an  entire  freight.  The  vessel  was 
lost  after  she  had  sailed  under  the  contract,  and  before  she  had 
taken  her  cargo  on  board.  The  plaintiff  recovered,  because  the 
right  under  the  contract  had  begun.  This  was  the  first  case  in 
which  a  charter  party  or  contract  of  affreightment  was  allowed  to 
stand  in  the  place  of  actual  shipment,  and  it  has  been  thought  to 
have  gone  to  the  very  verge  of  the  law  of  insurance.  The  right 
to  freight  for  the  us<^  of  the  ship,  was  put  on  the  same  foot  as 
the  right  to  freight  for  the  carriage  of  goods.  Atty  v.  Lindo,  4 
Bos.  &  Pull.  236,  before  Sir  James  Mansfield,  was  also  the  case 
of  a  charter  party,  not  differing  from  the  last,  except  that  the 
goods  were  carried  in  part  of  the  voyage,  and  part  was  delivered, 
but  the  contract  gave  no  right  to  freight  unless  all  was  delivered  ; 
and,  therefore,  there  was  a  total  loss.  Horncastle  v.  Stuart,  7 
East,  400,  decided  by  Lord  Ellenborough  in  1808,  went  upon 
the  same  principle.  In  Forbes  v.  Cowie,  1  Camp.  520,  522,  in 
1808,  there  was  no  charter  party,  and  the  liability  was  held  to 
extend  only  to  the  goods  on  board.  M'Kenzie  v.  Shedden,  2 
Campb.  431,  in  1810,  was  also  the  case  of  a  charter  party.  In 
Forbes  v.  Aspinall,  13  East,  323,  (181),  Lord  Ellenborough  held 
that  where  there  is  no  contract,  the  assured  could  only  recover  for 
the  freight  of  the  goods  shipped,  notwithstanding  it  was  a  valued 
policy ;  and  that  probability  or  reasonable  expectation,  furnished 
no  ground  for  a  recovery.  Upon  the  same  principles  the  case  of 
Patrick  v.  Eams,  3  Camp.  *441,  was  decided  in  1813.  r*ir»c| 
In  Davidson  v.  Willasey,  1  Maule  &  Selw.  313,  the  ves-  L  ^  -■ 
sel  sailed  under  a  charter  party  from  Liverpool  to  Jamaica,  and 
then  to  London.  The  freight,  valued  at  four  thousand  pounds, 
was  insured.  She  arrived  out  and  took  in  half  a  cargo,  the  re- 
mainder being  ready.  The  vessel  was  stranded,  and  a  total  loss 
under  the  policy  was  incurred.  Truscott  v.  Christie,  2  Brod.  & 
Bing.  320,  in  1820,  is  the  last  English  case  on  the  subject. 
There,  a  verbal  agreement  was  made  and  expenses  were  incurred, 
but  the  vessel  was  disabled  by  a  gale  before  sailing,  and  it  was 
decided  to  be  a  total  loss.  Park,  J.,  said  he  thought  Thompson 
V.  Taylor,  the  first  case  of  contract,  went  too  far.  Here  is  an 
unbroken  current  of  authorities  in  support  of  our  position,  which 
has  never  been  shaken.  The  expression  of  Lord  C.  J.  Eyre, 
relied  upon  on  the  opposite  side,  as  to  a  well  grounded  expec- 

115 


106  SUPREME  COURT  [PhUaddphia, 

[Adams  v.  The  Pennsylvania  Insnrance  Company.] 

tation  must  have  meant  a  well  grounded  expectation  that 
freight  would  be  raised  upon  goods  on  board.  If  he  meant 
an  expectation  of  goods  not  on  board,  he  cites  no  authority 
for  his  position,  and  none  can  be  cited.  The  American  cases, 
Livingston  v.  The  Columbian  Ins.  Co.,  3  Johns.  49 ;  Hart  w.The 
Delaware  Ins.  Co.,  2  Wash.  C.  C.  Rep.  346;  Riley  v.  Hartford 
Ins.  Co.,  2  Conn.  Rep.  368,  are  to  the  same  effect.  In  tliis  state 
of  the  law,  the  expected  cargo  at  Bordeaux  is  out  of  the  question. 
There  was  no  contract  of  charter  party  or  affreightment ;  no 
goods  were  on  board;  and  a  review  of  the  correspondence  will 
show,  that  no  goods  were  ever  contracted  to  be  provided  for  the 
owner,  nor  was  there  any  breach  of  orders  in  not  providing  them. 

2,  Can  the  plaintiff  recover  the  four  thousand  dollars  by 
reason  of  the  five  kegs  of  specie  on  board  when  the  Shamrock 
sailed  from  Gibraltar?  The  voyage  was  one  and  indivisible.  The 
valuation  was  upon  an  entire  interest  in  the  freight  expected  to 
be  made  during  the  whole  voyage ;  and  the  insurance  was  upon 
an  entire  premium.  The  intention  was  to  value  the  freight, 
which  would  be  on  board  during  the  voyage  from  Bordeaux  to 
Philadelphia,  at  four  thousand  dollars,  and  not  the  freight  of 
the  specie.  It  will  hardly  be  pretended,  that  in  point  of  value, 
the  freight  of  five  kegs  from  Gibraltar  to  Bordeaux,  is  equal  to 
the  freight  of  four  hundred  pipes  from  Bordeaux  to  Philadelphia. 
If  the  specie  is  to  pay  freight  per  cent,  and  not  by  bulk,  it  must 
fall  infinitely  short  of  four  thousand  dollars.  The  value  of  the 
dollars  is  not  the  question.  They  were  insured  and  the  loss 
paid.  It  is  the  value  of  the  carriage  of  the  dollars,  which  is  to  be 
regarded.  If  the  plaintiff  meant  to  value  that  at  four  thousand 
dollars,  he  did  not  say  so,  and  if  he  has  done  it  without  the 
agreement  of  the  defendants,  it  is  a  fraudulent  valuation,  and 
void.     Pliill.  on  Ins.  304,  306. 

But  there  is  another  view  to  be  taken  of  this  case.  If  the 
plaintiff  had  an  insurable  interest,  there  has  been  no  total  loss 
of  the  freight;  not  even  a  technical  total  loss.  If  the  ship  is 
injured  and  unable  to  proceed,  the  owner  is  bound,  if  he  can,  to 
r*lon  c^^^y  ^^  *^®  goods  *by  another  ship  and  earn  his 
^  -I  freight.  If  he  cannot,  there  may  be  either  a  partial  or 
a  total  loss  of  the  freight.  There  is  no  evidence  to  show  that 
the  plaintiff  could  not  carry  the  dollars  saved  to  Bordeaux,  nor 
that  he  could  not  carry  the  brandy  to  Philadelphia,  and  it  lies 
upon  him  to  show  that  he  could  not.  Carter  v.  The  American 
Ins.  Co.,  7  Cowen,  364;  Saltus  v.  The  Ocean  Ins.  Co.,  12  Johns. 
107 ;  Bradhurst  v.  The'Col.  Ins.  Co.,  9  Johns.  17. 

Huston,  J.  Rafter  stating  the  case),  delivered  the  opinion  of 
the  court  as  follows  : 
116 


Dec,  29,  1828.]      OF  PENNSYLVANIA.  106 

[Adams  v.  The  Pennsylvania  Insurance  Company.] 

It  was  admitted,  that  the  owner  of  a  vessel  and  cargo  naay 
insure  on  freight  when  carrying  his  own  goods ;  but  it  is  con- 
tended, that  the  policy  never  attached  in  this  ease.  It  was  set- 
tled long  ago,  that  although  the  goods  are  ready  to  be  loaded, 
yet  if  none  of  them  are  actually  on  board,  and  the  vessel  is 
driven  from  her  moorings  and  lost,  there  can  be  no  recovery  on 
an  insurance  on  freight,  2  Stra.  1251.  But  it  has  also  been 
settled,  that  if  a  vessel  is  chartered  to  go  to  T.,  and  take  in  a 
load  and  carry  it  to  B.,  and  she  is  lost  on  her  voyage  to  T.,  and 
never  takes  in  any  load,  there  can  be  a  recovery  on  the  policy 
on  freight,  on  the  ground  it  would  seem,  that  the  contract  to 
sail  to  T.,  and  take  in  the  lading  and  carry  it  to  B.,  was  one  entire 
contract,  and  having  set  sail,  the  policy  attached.  6  D.  &  E. 
478.  This  ship  sailed  under  a  charter  party.  It  would  seem 
to  have  been  settled  since,  that  if  the  vessel  sails  under  a  con- 
tract, or  being  in  a  port,  an  express  contract  is  made  to  load  lier, 
and  she  is  fitted  to  take  in  such  load,  and  is  lost,  there  can  be 
a  recovery  on  the  policy  on  freight.  Indeed,  there  seems  to  be 
no  doubt  that  a  recovery  may  be  had  on  such  policy,  if  the  ves- 
sel is  loaded,  though  she  has  not  sailed ;  or,  if  she  has  an  express 
contract  for  a  load,  though  none  of  it  is  on  board ;  or,  if  she  has 
set  sail  for  the  place  at  which  she  is  to  load,  or,  if  being  at  the 
place  of  loading,  her  owners  have  commenced  fitting  her,  to  re- 
ceive and  carry  the  loading  contracted  to  be  carried.  The  de- 
fendants say  no  case  has  gone  beyond  this,  and  the  plaintiif  in- 
sists, that  if  there  is  a  reasonable  expectation  of  a  load  at  a  port, 
and  a  vessel  sails  for  that  port  to  take  it  in,  the  policy  attaches, 
and  if  the  vessel  is  lost  by  the  perils  insured  against,  the  sum 
insured  will  be  recovered. 

Most  of  the  cases  on  this  subject  have  been  cited  in  the  argu- 
ment, and  I  have  carefully  examined  them,  and  have  come  to  the 
conclusion,  that  according  to  the  decided  cases,  the  defendants 
are  not  liable  in  this  case. 

It  has  been  contended  that  the  plaintiff  can  recover  though 
there  was  no  contract  and  no  load,  in  other  words,  that  a  gaming 
policy  is  good  in  this  state,  as  it  is  said  to  be  in  New  York. 
The  only  decided  cases  are  otherwise.  Since  those  decisions,  the 
law  has  been  considered  by  both  the  insured  and  insurer,  to  be 
otherwise.  Contracts  are  predicated  on  the  law  as  established, 
that  there  must  be  something  in  which  the  insured  has  an  inter- 
est, or  the  contract  is  void.  It  might  *work  great  in-  p^  -  ^_-. 
justice  to  decide  on  other  principles,  and  I  am  not  able  ^  -■ 
to  discern  any  good  result  to  be  expected  from  changing  the  law 
on  this  subject.  The  case  in  13  East,  Forbes  v.  Aspinall,  was 
of  a  vessel  loaded  with  goods,  as  was  fully  proved  by  the  event, 
sufficient  to  purchase  a  return  cargo,  and  there  was  no  question 

117 


107  SUPREME  COURT  [Philadelphia, 

[Adams  v.  The  Pennsylvania  Insurance  Company  ] 

but  they  would  be  applied  to  purchase  one,  or  that  when  pur- 
chased, it  would  be  carrie<l  in  that  ship.  There  was  an  insur- 
ance on  her  freight ;  part  of  her  outward  cargo  was  sold  ;  a  part 
of  her  return  cargo  was  loaded,  and  she  was  wrecked ;  and  a  re- 
covery was  had  only  for  the  freight  of  so  much  of  the  return 
cargo  as  was  loaded ;  and  yet  there  was  reasonable  ground  to 
expect  a  full  load.  The  phrase  reasonable  ground  to  expect  a 
load,  was  used  by  an  eminent  judge,  but  not  in  a  cause  of  insur- 
ance on  freight ;  it  was  a  mere  obite)'  dictum.  The  last  English 
case,  2  Brod.  &  Bing.  320,  will  not  help  the  plaintiif,  nor  will 
Parke  v.  Hebson  there  cited.  The  note  of  this  latter  case  is  too 
short  and  too  defective  in  precision  to  afford  any  certain  light; 
the  phrase  "  he  produced  letters  from  merchants  and  plantation 
owners  respecting  the  intended  shipments,"  is  very  vague,  but 
we  see  that  those  letters  must  have  been  precise,  and  amounted 
to  a  contract ;  for  Park,  J.,  says  in  Parke  v.  Hebson,  the  con- 
tract was  only  deducible  from  letters ;  and  Richardson,  J., 
l)efore  whom  it  would  seem  that  cause  was  tried,  says,  "  the 
question  is,  whether  there  was  a  subsisting  contract,  under  which 
the  party  could  have  recovered,  but  for  its  interruption  by  the 
perils  of  the  sea."  That  there  is  no  magic  in  a  charter  party  is 
clear  from  the  case  of  Parke  v.  Hebson.  And  the  whole  case 
goes  on  the  ground,  that  if  there  is  an  express  contract,  though 
no  charter  party,  nay,  though  only  by  parol,  freight  may  be  in- 
sured, but  it  gives  no  colour  to  the  doctrine  that  anything  less 
than  loading  the  goods  or  an  express  contract,  will  have  that 
effect. 

The  case  in  2  Conn.  Rep.  368,  is  full  and  express  to  the 
same  point.  It  is  almost  this  very  case.  It  does  not  seem  to 
me  in  principle  to  vary  from  or  go  beyond  the  law  as  settled 
before. 

In  this  case,  from  the  plaintiff's  own  letters  the  arrival  of  two 
or  three  ships  at  Bordeaux  for  brandy,  before  the  Shamrock, 
might,  and  probably  would  have  raised  the  price  above  the  limit 
fixed  by  the  plaintiff;  nay,  political  news  might  have  had  that 
effect,  and  then  the  ship  was  to  load  on  freight,  if  she  could  get 
it,  or  go  to  Russia.  There  was  no  cargo  purchased  for  her ; 
there  was  no  contract  on  which  any  person  was  liable,  if  she 
was  not  loaded  :  it  is  not  within  any  of  the  decisions  or  any  set- 
tled principle  of  decision,  and  the  judgment  must  be  entered  for 
the  defendants. 

Judgment  for  the  defendants. 

Cited  by  Counsel,  3  K.  223 ;  3  Wh.  476, 624 ;  31  S.  165 ;  s.  c.  3  W.  N.  C.  201. 

Cited  by  Court,  13  W.  N.  C.  490. 

See  note  to  Phillips  v.  Ives,  ante,  p.  36. 

118 


Jan.  10,  1829.]     OF   PENNSYLVANIA.  108 


♦[Philadelphia,  January  10, 1829.]  r*108] 

Collam  against  Hocker. 

IN  ERROR. 

Parol  evidence  is  not  admissible  to  prove  the  reservation  of  a  right  of  way, 
which  is  not  reserved  by  or  noticed  in  the  deed. 

Writ  of  error  to  the  District  Court  for  the  city  and  county  of 
Philadelphia,  in  which  a  verdict  and  judgment  were  returned  in 
favour  of  the  plaintiif  below. 

It  was  an  action  on  the  case,  to  recover  damages  for  a  dis- 
turl)auce  of  a  right  of  way.  On  the  trial  below  it  appeared, 
that  John  Hocker  (the  plaintiff  below)  and  Christopher  Hocker, 
were,  on  the  17th  day  of  September,  1822,  tenants  in  common 
of  a  messuage  and  lot  of  ground  on  Green  Street.  They  also 
owned,  in  severalty,  the  two  adjoining  houses  to  the  east,  the 
middle  house  being  Christopher's,  and  the  easternmost  John's. 
The  ground  on  which  these  three  messuages  were  erected,  was 
sold  to  the  Hockers  by  one  West,  who  reserved  a  reut  charge. 
By  the  terms  of  the  contract  with  West,  he  was  not  to  complete 
the  sale  by  a  deed  of  conveyance,  until  the  Hockers  had  made 
sufficient  erections  to  secure  the  reut  charge.  John  and  Chris- 
topher laid  out  the  ground  into  three  lots,  and  built  these  three 
houses  at  their  joint  expense,  and  the  ground  was  so  arranged, 
that  there  was  a  passage  way,  or  alley,  from  the  rear  of  the 
easternmost  lot,  across  the  rear  of  the  middle  lot,  and  through 
the  eastern  part  of  the  westernmost  lot,  under  an  arch-way  to 
Green  Street.  John  and  Christopher  Hocker  subsequently  re- 
solved upon  a  division  in  the  above  form,  which  was  effected  by 
receiving  three  separate  deeds  from  West,  apportioning  the 
ground  rent. 

On  the  17th  of  September,  1822,  John  and  Christopher 
Hocker  conveyed,  by  one  deed,  the  middle  and  westernmost 
messuages  to  one  Enoch  Addis,  in  fee,  and  the  said  Enoch,  on 
the  fifth  of  July,  1823,  conveyed  the  westernmost  messuage  to 
Collam,  the  defendant  below,  who,  in  the  month  following,  closed 
up  the  alley  at  the  point  where  it  entered  his  lot.  From  the  time 
of  the  erection  of  the  buildings,  to  this  period,  the  alley  had 
been  enjoyed  by  the  tenants  of  the  easternmost  house,  and  was 
divided  off  from  the  lots  through  which  it  passed,  by  a  substan- 
tial board  fence. 

lu  the  deed  from  the  Hockers  to  Addis,  there  was  no  reserva- 
tion of  a  right  of  way  for  the  benefit  of  the  easternmost  house ; 
but,  on  the  trial,  the  plaintiff  below  offered  to  prove  that  there 

119 


108  SUPREME   COURT  [Philadelphia, 

[Collam  V.  Hocker.] 

was  a  parol  reservation  at  the  time  this  conveyance  was  made, 
and  that  the  defendant  bought  with  notice  of  such  reservation. 
This  evidence  was  objected  to,  but  admitted  by  the  court ;  where- 
upon, the  plaintiff  examined"  Christopher  Hocker,  and  Enoch 
r*10Ql  ^^^^^^>  ^^^^^  deposed  *that  the  said  alley  was  distinctly 
'-  -•  reserved  at  the  time  of  making  the  contract,  and  that  it 
was  their  contract  that  it  should  remain  in  the  state  in  which  it 
then  was,  for  the  benefit  of  John  Hooker's  house.  They  also 
deposed  that  the  scrivener  who  drew  the  deed,  read  it  to  them, 
and  they  all  declared  it  was  right.  It  was  then  proved  that  the 
defendant,  Collam,  had  l^een  often  heard  to  declare  that  "  he  had 
never  bought  the  alley,  but  that  his  deed  gave  it  to  him,  and  he 
had  an  undoubted  right  to  take  it  in."  At  the  request  of  the 
defendant's  counsel,  the  court  sealed  a  bill  of  exceptions. 

The  error  assigned  in  this  court,  was  the  admission  of  parol 
testimony  to  prove  the  right  of  way,  which  was  not  reserved 
by,  or  noticed  in  the  deed. 

Rawle,  for  the  plaintiff  in  error,  contended,  1st,  That  there 
was  no  fraud  or  mistake,  which  distinguishes  this  case  from 
Hurst  V.  Kirkbride,  1  Binn.  616;  Thomson  v.  White,  1  Dall. 
424;  Field  v.  Biddle,  1  Yeates,  132;  2  Dall.  171;  Dinkle  v. 
Marshall,  3  Binn.  587,  and  all  the  other  cases  which  establish  and 
limit  the  admissibility  of  parol  evidence  to  vary  written  instru- 
ments in  Pennsylvania,  and  that  it  more  resembled  the  cases  of 
Snyder  v.  Snyder,  6  Binn.  483 ;  Pickering  v.  Stapler,  5  Serg. 
&  Rawle,  107 ;  Heagy  v.  Umberger,  10  Serg.  &  Rawle,  341. 
2dly,  That  the  parol  evidence  admitted  was  not  of  what  oc- 
curred at,  but  before  the  execution  of  the  instrument,  and  that 
the  deed  must  be  considered  a  consummation  of  all  previous 
bargaining,  and  the  final  intent  of  the  parties  :  Cozens  v.  Steven- 
son, 5  Serg.  &  Rawle,  421. 

3dly,  The  statute  of  frauds  declares  that  all  leases,  estates, 
&c.  (excepting  leases  for  three  years)  made  or  created  by  parol, 
shall  have  the  effect  of  leases  or  estates  at  will  only.  Here  the 
plaintiff  attempts  to  set  up  a  right  of  way  by  parol,  which, 
being  a  species  of  estate,  is  therefore,  in  contravention  of  the 
statute  :  Jones  v.  Peterman,  3  Serg.  &  Rawle,  543. 

Haly  and  F.  W.  HubbeU,  for  the  defendant  in  error,  argued, 
1st,  That  this  parol  testimony  was  admissible  in  Pennsylvania, 
on  the  authority  of  Hurst  v.  Kirkbride,  cited  in  1  Binn.  616; 
Thompson's  Less.  v.  White,  1  Dall.  424 ;  Peterson  v.  Willing, 
3  Dall.  506  ;  Less,  of  Dinkle  v.  Marshall,  3  Binn.  587  ;  Christ 
V.  Diffenbach,  1  Serg.  and  Rawle,  464  ;  Campell  v.  M'Clenachan, 
6  lb.  171 ;  Hill  v.  Ely,  5  Serg.  &  Rawle,  363;  Lyon  et  al.  v. 
120 


/an.  10,1829.]      OF   PENNSYLVANIA.  109 

[Collam  V.  Hocker.] 

Huntingdon  Bank,  14  lb.  285  ;  Stubbs  v.  King,  lb.  206  ;  Fred- 
erick V.  Campbell,  lb.  293;  Miller  v.  Henderson,  10  lb.  290; 
Mackey  v.  Browufield,  13  lb.  239.  They  contended  that  the 
term,  "  fraud,"  in  those  cases,  did  not  mean  a  tricking,  over- 
reaching, or  deceiving  the  party  at  the  time  of  the  contract, 
but  the  fraud  of  setting  up  a  written  agreement  in  contraven- 
tion of  the  parol  stipulation  and  expressed  intent  of  {he  parties. 

2dly,  That  this  case  is  distinguished  from  Cozens  v.  Stevenson, 
5  Serg.  &  Kawle,  421,  thus;  that  case  was  decided  on  the  pre- 
sumption that  the  last  agreement  was  the  consummation  of  the 
party's  *intention.  In  the  present  case,  such  presump-  r*-|-|(-,-i 
tion  is  rebutted  by  the  evidence  of  the  grantee  and  one  '-  -^ 
of  the  grantors,  who  deny  that  they  waived  the  parol  agreement 
by  the  deed,  and  also  by  the  defendant's  declarations.  Such 
presumptions  may  be  so  rebutted :  Stubbs  v.  King,  14  Serg.  & 
Kawle,  206 ;  M'Dowel  v.  Cooper,  lb.  297. 

3dly,  This  case  is  easily  distinguished  from  all  the  other 
cases  in  Pennsylvania,  in  which  it  has  been  decided,  that  parol 
evidence  was  not  admissible,  in  this :  that  in  none  of  those 
cases  was  there  a  parol  contract.  The  parol  evidence  was  either 
of  declarations  by  one  party,  not  communicated  to  the  other, 
or,  of  parol  declarations  by  one  party,  not  assented  to  or  ac- 
quiesced in  by  the  other,  and  forming  no  part  of  the  consider- 
ation of  the  deed ;  and  if  there  were  no  contract,  there  was 
no  fraud  in  the  sense  that  we  have  defined  it,  to  wit ;  a  fraudu- 
lent setting  up  of  a  written  instrument,  in  contravention  of  the 
parol  agreement  of  the  parties. 

4thly.  The  statute  of  frauds  has  no  sort  of  application  to  this 
case ;  for  the  question  here,  is  not  what  estate  may  pass  or  be 
raised  by  parol ;  for  the  right  of  way  is  a  part  of  the  ancient 
dominion,  but  whether  that  has  been  given  away.  The  plain- 
tiff seeks  not  to  raise  any  new  estate,  but  to  remain  in  statu  quo. 

The  opinion  of  the  court  was  delivered  by 

Smith,  J. — This  case  comes  before  the  court,  upon  a  writ  of 
error  to  the  District  Court  for  the  city  and  county  of  Fhila- 
delphia.  It  was  an  action  of  trespass  on  the  case,  brought  by 
the  defendant  in  error  against  the  plaintiff  below,  for  obstruct- 
ing his  right  of  way. 

The  plea  was,  not  guilty. 

The  cause  was  tried  on  the  17th  day  of  April,  1826.  On 
the  trial  in  the  court  below,  the  plaintiff,  the  now  defendant  in 
error,  gave  in  evidence,  that  he  and  his  brother,  Christopher 
Hocker,  were,  on  the  17th  day  of  September,  1822,  seised  in 
their  demesne,  as  of  fee,  of  two  brick  houses  and  lots  of  ground, 
in  Green  Street,  in  the  township  of  the  Northern  Liberties,  in 

121 


110  SUPREME  COURT  [P/dladelpJiia, 

[Collam  V.  Hocker.] 

the  county  of  Philadelphia,  and  being  so  thereof  seised,  by- 
deed,  dated  the  same  day  and  year,  conveyed  the  same  to  a 
certain  Enoch  Addis,  in  fee.  The  plaintiff  below  further  proved, 
that,  at  the  time  of  the  said  conveyance  to  Enocdi  Addis,  he, 
the  said  John  Hocker,  was  seised,  in  fee,  of  a  certain  other 
house  and  lot  of  ground,  contiguous  to  the  easternmost  of  the 
said  houses,  and,  after  having  given  this  evidence,  then  offered 
to  prove  and  give  in  evidence,  "  that  a  right  for  himself,  his 
heirs  and  assigns,  tenants  and  occupiers  of  the  same  house,  to 
use  an  alley  across  the  rear  end  of  the  lot  on  which  the  east- 
ernmost of  the  two  houses  is  erected,  and  between  the  eastern- 
most and  westernmost  of  said  houses,  so,  as  aforesaid,  granted 
to  the  said  Enoch  Addis,  was  verbally  reserved  for  him,  at  the 
time  of  executing  the  said  deed :  That  the  said  Enoch  Addis 
verbally  agreed  to  the  said  reservation,  and  that  the  defendant 
r*lin  P^irchased  of  the  said  *Enoch,  with  notice  of  the  said 
•-  -J  reservation."  This  being  objected  to  by  the  defend- 
ant's counsel,  the  court  overruled  the  objection,  and  admitted 
the  evidence  to  be  given,  and  sealed  a  bill  of  exceptions.  This 
case  then  presents  the  following  points : — Can  parol  testimony 
be  admitted  to  show  the  reservation  of  a  right  of  way,  or  of  an 
alley,  though  not  noticed  or  reserved  in  the  deed?  I  would 
here  observe,  that  it  does  not  appear  to  me  to  be  absolutely 
necessary  for  this  court,  in  the  present  case,  (nor  is  such  my 
intention)  to  draw  the  exact  line  which  should  regulate  the 
admission  or  exclusion  of  parol  evidence  in  all  future  cases.  If 
we  were  to  do  so,  it  might  lead  to  great  injury,  and,  in  the 
language  of  a  very  learned  and  excellent  judge,  "  I  would  not 
undertake  to  do  this."  If  it  be  shown  that  the  evidence  re- 
ceived, w^as  not,  on  legal  principles,  admissible,  it  will  be  suffi- 
cient for  the  decision  of  the  present  point.  It  has  often  been 
said,  that  courts  should  be  very  cautious  in  admitting  any  parol 
evidence  to  supply  or  explain  written  contracts,  and  that  it 
ought  not  to  be  suffered,  so  as  to  contradict  or  explain  away  an 
explicit  agreement.  And,  in  Meres  v.  Ansell  et  aL,  3  Wils.  Rep. 
275,  the  court  said,  no  parol  evidence  was  admissible  to  substan- 
tially vary,  alter,  or  impugn  a  written  agreement ;  neither  is  it 
admissible  to  abate  or  extend  a  deed.  In  this  state,  I  take  it, 
the  principle  that  parol  evidence,  which  goes  to  destroy,  con- 
tradict, extend,  or  alter  a  deed,  is  inadmissible,  has  been  recog- 
nized, with  some  salutary  exceptions  and  modifications; — for 
instance,  where  fraud  or  surprise  in  obtaining  the  deed,  mistake 
of  the  scrivener  in  departing  from  his  instructions,  or  any 
other  clear  matter  of  mistake  are  made  to  appear  and  present 
themselves  to  the  court,  parol  evidence  has  been  held  to  be  ad- 
missible in  this  state.  In  the  present  case,  the  evidence  given 
122 


Jbn.  10, 1829.]       OF  PENNSYLVANIA.  Ill 

[Collam  V.  Hocker.] 

was  not  to  prove  any  kind  of  fraud,  or  surprise,  or  any  mistake 
of  the  scrivener  in  executing  liis  instructions;  notliing  of  the 
sort  was  pretended ; — on  the  contrary,  it  appears  that  the  lots 
of  ground  were  fairly  sold,  and  conveyed,  absolutely,  by  deed, 
to  Enoch  Addis,  in  which  no  reservation  of  a  right  of  way  is 
made  or  mentioned;  nor  do  we  hear  that  anything  of  this 
alleged  reservation  of  a  right  to  use  an  alley  across  the  rear  end 
of  the  lots,  was  ever  reduced  to  writing,  or  ever  mentioned  to 
the  scrivener  who  drew  the  deed,  or  left  out  of  it  by  any  mis- 
take ;  indeed,  it  is  somewhat  singular,  that  neither  the  scrivener 
nor  the  witnesses  who  were  called ;  neither  Christopher  Hocker 
nor  Enoch  Addis,  who  made  the  bargain,  state,  or  pretend  to 
intimate,  that  it  was  left  out  of  the  deed  by  mistake,  or  that  it 
had  been  agreed  to  be  inserted  in  it : — to  say  the  most  of  it,  it 
was  a  mere  parol  reservation,  left  in  parol,  and  depending  on 
parol.  Is  then  such  a  case  within  the  rules  or  exceptions  in 
which  parol  testimony  has  been  admitted  and  received  to  vary  a 
written  deed  ?  We  think  not.  The  right  of  way  is  an  incorpo- 
real right,  which  will  not  pass  without  deed  ; — it  is  the  subject 
only  of  a  grant  to  be  passed  by  deed,  and  not  by  livery  and 
seisin,  and  could  not  here  be  passed  by  a  parol  agreement,  in- 
consistent *witli  the  deed  from  Hocker  to  Addis ;  nor  do  r*-|  1 9-1 
I  apprehend,  that,  under  the  existing  circumstances  of  the  L  -• 
present  case,  in  relation  to  this  claim  of  the  right  to  the  alley, 
chancery  would  or  could  compel  a  deed  to  be  executed  for  it,  by 
Addis  or  Collam.  The  parties  mistook  the  law  if  they  thought 
a  right  of  way  might  be  reserved  by  parol.  The  salutary  rule 
of  law,  that  where  an  agreement  is  reduced  to  writing,  all  pre- 
vious treaties  between  the  parties,  are  resolved  into  that,  is  strictly 
applicable  here.  The  intention  of  the  parties  must  be  collected 
from  their  written  expressions,  and  not  from  circumstances  dehors 
their  deeds.  In  this  deed  their  expressions  are  intelligible,  and 
need  no  foreign  aid  to  explain  them ;  and  no  ambiguity  appears 
on  the  face  of  their  deed.  When  then  we  have  presented  to  us, 
a  case  in  which  parol  testimony  was  offered  and  admitted  to  vary 
and  contradict  a  deed,  (not  an  agreement  but  an  absolute  deed, 
the  completion  of  all  bargains),  and  to  establish  a  right  of  way 
by  parol,  we  are  of  opinion  the  parol  evidence  ought  not  to  have 
been  received.  And,  therefore,  the  judgment  of  the  District 
Court  should  be  reversed,  and  a  venire  facias  de  novo  awarded. 
ToD,  J.,  dissented. 

Judgment  reversed,  and  a  venire  facias  de  novo  awarded. 

Cited  by  Counsel,  1  Penn.  R  392;  3  Penn.  R.  125;  4  E.  138;  2  Wh.  78 
6  Wh.  91,  206 ;  1  W.  35 ;  3  W.  184 ;  8  W.  146 ;  8  W.  &  S.  324 ;  7  Barr,  118  ; 
8  Barr,  386 ;  5  H.  224 ;  1  J.  279  ;  2  J.  96  ;  3  H.  70 ;  10  H.  242 ;  2  C.  442 ;  9  C 
877  ;  3  G.  55 ;  6  S.  313 ;  12  S.  455 ;  21  S.  67  ;  15  N.  213 ;  1  W.  N.  C.  369. 

Cited  by  the  Court,  1  Penn.  E.  419 ;  2  Ash.  328 ;  4  W.  291 ;  3  Barr,  255. 

123 


112  SUPREME  COURT  [Phikvddphia, 


[Philadelphia,  Januaky  15, 1829.] 

Thomas  against  Thomas,  surviving  Executor  of  Thomas. 

Testator  directed  his  real  estate  to  be  sold  by  his  executors,  and  that  when 
sold  and  the  money  collected,  they  should  pay  all  his  just  debts  and  all  the 
just  debts  of  his  son  L.,  contracted  up  to  the  date  of  the  will,  but  none  that 
he  might  contract  after  that  date.  He  then  directed  that  his  wife  should 
have  and  enjoy  all  his  estate,  real  and  personal,  during  her  life,  and  that  at 
her  death,  one  moiety  should  be  left  at  her  own  disposal.  The  other  moiety 
he  directed  to  be  put  out  at  interest  for  the  use  and  benefit  of  his  son  L.,  for 
him  to  receive  the  interest  of  the  same  itnnually  during  his  natural  life ;  and 
at  his  decease,  the  principal  and  interest  of  the  same,  to  be  at  his  own  dis- 
posal. The  wife  survived  the  testator  and  died  intestate.  Tlie  son  L.  sur- 
vived his  father  and  mother,  and  died  intestate,  leaving  the  plaintiff  his  only 
child. 

Held,  that  after  the  death  of  the  widow,  without  appointment,  one-half  of 
the  estate  vested  absolutely  in  the  son  L.  as  next  of  kin,  and  was  liable  to  his 
debt ;  and  that  as  to  the  other  half,  it  went  to  his  son  L.  for  life,  and  after  his 
death,  without  appointment,  Xo  the  plaintiff  as  next  of  kin  of  the  testator,  and 
was  not  liable  to  the  debts  of  the  testator's  son  L. 

On  the  trial  of  this  cause  at  Nisi  Prius,  a  verdict  was  ren- 
dered for  the  plaintiif,  for  three  hundred  and  eighty-nine  dollars 
sixty-four  cents,  subject  to  the  opinion  of  the  court  upon  his 
right  to  recover,  upon  the  whole  evidence ;  from  which  it  ap- 
peared that  Nathan  Thomas,  the  defendant's  testator,  departed 
r*i  1  •^l  ^^^'^  ^^^^  having  made  his  last  *will  and  testament  bear- 
L  J  ing  date  the  3d  of  November,  1804,  wherein  he  de- 
vised as  follows : — 

First  "  My  will  is,  that  the  plantation  and  tract  of  land 
which  I  now  possess  in  the  township  of  Blockley,  and  county 
aforesaid,  with  the  appurtenances  thereunto  belonging,  be  sold 
two  years  after  my  decease,  or  at  any  time  within  the  said  term, 
if  my  executors  shall  conceive  it  most  advisable  for  the  benefit 
of  the  same,  and  when  sold  and  the  money  collected,  my  will  is 
that  all  my  just  debts  be  paid,  and  also  all  the  just  debts  of  my 
son  Lewis  Thomas,  which  he  may  have  contracted  until  the  date 
of  this  my  will,  but  none  that  he  may  contract  after  this  date. 
My  will  further  is,  that  my  beloved  wife,  Sarah  Thomas,  shall 
have  and  enjoy  all  and  singular  my  moneys,  goods,  chattels, 
rights,  credits,  eifects,  and  all  my  estate,  real,  personal,  and 
mixed,  whatsoever  and  wheresoever,  during  her  natural  life,  and 
at  the  decease  of  my  said  wife,  the  one  moiety  or  half  part  of 
the  said  estate  which  may  be  left  at  her  own  disposal ;  and  the 
other  moiety  or  half  part  of  the  said  estate,  to  be  put  out  to  in- 
terest for  the  u.se  and  benefit  of  my  son  Lewis,  and  for  him  to 
receive  the  interest  of  the  same  annually  during  his  natural  life, 
124 


/an.  15, 1829.]       OF  PENNSYLVANIA.  113 

[Thomas  v.  Thomas,  surviving  Executor  of  Thomas.] 

and,  at  his  decease,  the  principal  and  interest  of  tlie  same  to  be 
at  his  own  disposal.  And,  lastly,  I  do  hereby  nominate  and 
appoint  my  beloved  wife,  Sarah  Thomas,  executrix,  and  my  be- 
loved friend,  Thomas  Thomas,  to  be  my  executor  of  this  my  last 
will  and  testament,  hereby  revoking,"  &c. 

Sarah  Thomas  survived  the  testator,  and  died  intestate. 
Lewis  Thomas  survived  his  father  and  mother  and  died  intes- 
tate, leaving  the  plaintiff  his  only  child. 

The  defendant,  who  was  sued  as  surviving  executor  of  Nathan 
Thomas,  also  administered  to  the  estate  of  Lewis  Thomas,  on  the 
19th  of  September,  1827.  This  action  was  brought  by  the  plain- 
tiff to  recover  the  balance  of  the  estate  of  his  grandfather,  ac- 
cording to  the  account  filed  by  the  defendant,  as  executor  of  that 
estate. 

The  defendant  contested  the  plaintiff's  right  to  recover,  in  be- 
half of  the  creditors  of  Lewis  Thomas. 

Chew,  for  the  plaintiff,  cited  Flintham's  Appeal,  11  Serg.  & 
Rawle,  16,  and  contended,  that  it  was  clear,  upon  the  intention 
of  the  testator,  that  Lewis  Thomas,  as  to  the  moiety  bequeathed 
in  trust  for  him,  had  an  equitable  estate  for  life,  with  a  power 
to  appoint  the  reversion,  which  went  to  the  next  of  kin  of  the 
testator  at  the  time  of  his  death,  excluding  Lewis,  in  default  of 
appointment. 

Binney,  for  the  defendant. — The  plaintiff,  to  support  his 
action,  must  claim  as  next  of  kin  to  his  grandfather,  Nathan 
Thomas.  If  his  title  is  as  next  of  kin  to  his  father,  he  must 
brino;  suit  ag-aiust  the  defendant  as  administrator  of  his  father, 
and  the  debts  of  the  father  must  then  be  paid.  It  is  to  avoid 
this  payment,  that  the  suit  is  brought  against  the  executor  of 
the  grandfather. 

The  testator's  will  gives  the  whole  of  his  estate  to  his  wife  for 
life,  with  a  power  of  disposing,  at  her  death,  of  a  moiety,  which 
*power  was  never  exercised.  After  her  death,  he  di-  r^ii^-i 
rects  the  other  moiety  to  be  placed  at  interest  for  the  L  J 
use  of  his  son  Lewis,  and  leaves  him  the  power  of  disposing,  at 
his  death,  of  both  principal  and  interest.  This  power  also  was 
never  exercised.  It  is,  consequently,  the  case  of  a  limitation  of 
estate,  real  and  personal  to  A.  for  life,  witli  a  power  of  appoint- 
ment over  a  moiety  in  fee  or  absolutely,  to  take  effect  at  the 
death  of  A.  and  after  A.'s  death,  a  further  limitation  of  a 
moiety  in  trust  for  the  use  of  B.  for  life,  with  a  like  power  of 
appointment  to  B.  over  that  moiety ;  both  the  devisees  having 
failed  to  execute  the  power. 

The  mother  having  died  in  the  life  of  the  son,  and  the  testator 

125 


114  SUPREME  COURT  [Philadelphia, 

[Thomas  t>.  Thomas,  surviving  Executor  of  Thomas.] 

having  omitted  to  make  any  provision  for  her  failure  to  appoint 
the  moiety  ])laced  at  her  disposition, — it  follows,  that  at  the 
mother's  death,  at  the  latest,  the  title  to  the  reversion  of  the  one 
moiety  became  vested  in  some  one ;  and  no  person  could  have 
any  pretention  to  it  at  that  time,  but  the  testator's  son  Lewis 
Thomas,  who  was  both  then  and  at  the  testator's  death,  his  heir, 
and  only  next  of  kin.  As  to  that  moiety  consequently  the 
plaintiff,  the  grandson,  can  have  no  title. 

The  same  is  true  of  the  other  moiety ;  for  the  principle  on 
which  Lewis  Thomas  took  the  first  moiety  rules  the  other ; 
namely,  that  a  power  of  appointment  or  disposition,  does  not 
prevent  the  undisposed  of  estate  from  vesting  somewhere  in  the 
meantime ;  that  it  vests  in  like  manner  as  if  the  power  was  not 
created,  either  in  the  devisee  over,  or,  if  there  be  none,  in  the 
heir  or  executor,  as  trustee  for  the  next  of  kin  at  the  testator's 
death  ;  and,  consequently,  that  as  Lewis  Thomas,  at  the  death  of 
the  testator,  his  father  became  entitled  as  heir  or  next  of  kin,  to 
the  reversion  of  one  moiety  of  the  estate  after  his  mother's 
death,  subject  to  her  power  of  appointment,  so  he  became  en- 
titled at  the  same  time,  to  the  reversion  of  the  other  moiety  after 
the  expiration  of  his  equitable  estate  for  life,  subject  to  his  own 
power  of  appointment. 

This  is  a  consequence  of  the  nature  of  a  power  of  appointment. 
Sugden  on  Powers,  148;  Cunningham  v.  Moody,  1  Vez.  174; 
Doe  V.  Martin,  4D.  &  E.  39.  The  estates  limited  over  in  de- 
fault of  appointment,  are  vested,  as  well  in  the  case  of  personalty 
as  of  realty.  Sugden  on  Powers,  151  ;  Coleman  v.  Seymour, 
1  Ves.  209 ;  Gorden  v.  Levi,  Amb.  364 ;  Reade  v.  Reade,  5 
Ves.  jr.  748. 

The  son,  Lewis  Thomas,  consequently,  had  the  reversion  of  the 
moiety  in  himself,  by  his  title  as  next  of  kin  to  the  father,  the  tes- 
tator having  made  no  disposition  of  it;  and^  on  his  death,  without 
disposing  of  it,  his  administrator  took  it  upon  the  usual  trusts  of 
that  office. 

The  objections  to  this  argument  are  to  be  noticed. 

1.  It  may  be  said  that  the  testator's  intention  was  that  the 
son  should  have  no  more  than  what  he  expressly  gave  him, — 
an  estate  for  life  in  a  moiety.  The  answer  is,  that  the  testator 
r-^^  ^  K-i  has  not  given  *the  rest,  residue,  or  remainder,  to  any 
"-  -I  one,  and  consequently,  the  law  casts  it  on  the  son, 
either  as  heir  or  next  of  kin.  If  he  meant  to  make  a  different 
disposition  of  it,  quod  voluit  non  dixit.  The  court  cannot  make 
a  will  for  him.  The  son  takes  his  own  equitable  estate  for  life, 
by  express  devise;  the  undevised  residue,  by  his  relation  to  the 
testator.  If  the  testator  did  not  mean  he  should  have  it,  he  has 
not  shown  who  else  should  have  it,  and  that  is  enough  to  cast  it 
126 


Jaw.l5,1829.J      OF  PENNSYLVANIA.  115 

[Thomas  v.  Thomas,  surviving  Executor  of  Thomas.] 

on  the  son.  If  he  Ii;id  expressly  said  that  his  son  should  not 
have  it,  still  the  law  would  have  cast  the  realty  on  him,  as  heir, 
and  if  he  could  not  have  made  title  to  the  personalty  as  next  of 
kin,  the  executor  would  have  kept  it  for  his  own  use. 

2.  It  may  also  be  said,  that  this  interpretation  exposes  the 
estate  to  the  payment  of  the  debts  of  Lewis,  contrary  to  the  ex- 
press declaration  of  the  testator.  To  this  it  is  answered,  that 
there  is  no  such  declaration  in  the  will,  as  that  Lewis's  debts 
should  not  be  paid  out  of  Lewis's  estate ;  but  only  that  the  tes- 
tator's estate  should  not  pay  any  of  Lewis's  debts  after  the  date 
of  the  will.  The  testator  meant  to  secure  all  to  the  wife  for 
life,  after  paying  certain  debts  ;  after  her  death,  the  interest  of 
the  moiety  devised  to  the  use  of  Lewis  for  life,  was  liable  for  all 
his  debts,  there  being  no  provision  to  the  contrary  in  the  wall, 
and  clearly  he  was  invested  Avith  power  to  devise  it  for  their  pay- 
ment. Another  is,  that  if  the  testator  did  not  intend  it  should 
be  liable  for  the  debts,  he  has  made  no  provision  to  exempt  it, 
and  the  law  can  make  none.  If  a  testator  does  not  dispose  of 
his  entire  estate,  the  law,  to  prevent  confusion,  must  do  it  for 
him.  His  purpose  may  be  disappointed  by  this ;  but  then  it  is 
because  he  has  not  had  a  complete  purpose,  or  he  has  not  stated 
what  it  is.  The  estate  for  life  of  the  son  was,  however,  as  safe 
under  one  interpretation  as  the  other.  His  taking  the  reversion 
did  not  expose  the  life  estate  to  the  creditors,  since  there  was 
no  merger  or  extinguishment  of  it. 

3.  It  may  also  be  said,  that  the  estate  vests,  notwithstanding 
the  appointment,  only  where  it  is  the  case  of  a  limitation  over  in 
default  of  appointment,  and  not  in  a  case  where  there  is  no  lim- 
itation over.  This  distinction  is  not  admitted.  First,  in  the 
case  of  real  estate.  If  an  estate  be  devised  to  A.  for  life  with  a 
power  to  dispose  of  the  fee,  it  is  clear  that  the  reversion  descends 
to  the  heir  at  law,  and  is  vested  in  him,  subject  to  the  operation 
of  the  power.  It  is  his  seisin  alone  that  can  serve  the  uses  of 
the  power.  It  is  as  effectually  vested  in  him  by  operation  of 
law,  as  if  it  were  devised  to  liim  in  default  of  the  execution  of 
the  power.  This  is  the  consequence  of  the  well  established  prin- 
ciples,— ^that  what  the  testator  does  not  devise  away,  descends 
to  his  heir ; — that  the  courts  always  lean  in  favour  of  vesting, — 
and  tlxat  if  the  reversion  were  in  abeyance  or  contingent,  the 
devisee  for  life  might  destroy  it  without  having  recourse  to  the 
power. 

Secondly.  In  regard  to  personalty.  The  property  in  con- 
troversy is  wliat  belonged  to  the  testator,  and  what  he  did  not 
dispose  of  by  *his  will.  To  whom  does  such  property  go,  r*i  -i  n-i 
but  to  the  executor  in  trust  for  the  next  of  kin,  at  the  L  -^ 
testator's  death,  subject  to  be  divested  by  the  operation  of  the 

127 


116  '  SUPREME  COURT  [PhilaMphm, 

[Thomas  v.  Thomas,  surviving  Executor  of  Thomas.] 

power?  Tliat  which  the  testator  lias  not  given  away,  cannot  be 
contingent,  for  the  faw  makes  no  contingent  dispositions.  All 
reversions  are  vested  interests.  There  is  always  a  person  to 
take  what  a  testator  or  intestate  may  die  possessed  of,  and  which 
is  not  disposed  of  by  him.  The  objects  of  his  gift  may  be  con- 
tingent, or  he  may  give  contingently ;  but  if  he  does  not  give 
the  whole  of  his  estate  away,  the  })art  not  given,  whether  it  he 
part  of  a  specific  sum,  or  part  of  the  entire  fee  simple  or  prop- 
erty in  an  item,  necessarily  vests  somewhere.  The  whole  diffi- 
culty of  the  question  whether  the  limitation  be  vested  or  con- 
tingent, is  confined  to  the  case  of  a  devise  over,  after  the  limita- 
tion of  a  preceding  power  to  dispose  of  the  entire  estate; — it 
never  existed  in  the  case  of  a  descent  or  intestacy  where  the  law 
provides  instantly  an  heir  or  successor,  whose  estate  continues 
until  displaced  by  the  execution  of  the  power.  The  very  ground 
on  which  estates  limited  in  default  of  a  poMer,  are  held  to  be 
vested  and  not  contingent,  is,  that  until  the  power  is  executed, 
there  is  no  estate  created  by  it ;  and  if  this  is  the  rule  in  regard 
to  estates  devised,  it  must  be  as  to  estates  descended ;  for  in  the 
latter  case,  if  the  contingency  exist  at  all,  it  must  spring  from 
the  power,  which,  for  the  reason  above  stated,  it  cannot  do,  or  it 
must  be  in  the  estate  descended,  which  is  a  solecism.  It  follows, 
consequently,  that  after  the  death  of  the  testator's  widow,  Lewis 
Thomas  had  an  absolute  estate  in  one  moiety,  a  trust  for  life  in 
the  other  moiety,  and  the  reversion  absolutely,  subject  to  a  power 
of  appointment  in  himself,  in  which  there  is  no  repugnancy ; 
for  it  is  settled  that  a  power  to  appoint  uses  may  be  reserved 
to  the  owner  of  the  fee.  The  reversion  of  the  estate  vested  in 
him,  as  so  much  of  the  use  of  the  estate  not  declared  by  the 
testator,  and  therefore  descending  to  his  heir,  or  going  qium  ab 
intestaio,  to  his  next  of  kin,  to  yield,  nevertheless,  to  the  estate 
that  was  to  arise  out  of  the  execution  of  the  power,  if  the  son 
should  exercise  it,  which  he  never  did. 

If  the  court  assist  the  will  by  interpreting  it  to  be  a  devise  to 
the  wife  for  life,  with  power  to  appoint  a  moiety,  and  if  she 
fails,  then  as  to  that  moiety,  to  the  testator's  next  of  kin,  and 
as  to  the  other  moiety  to  the  use  of  the  son  for  life,  with  power 
to  appoint  it,  and  if  he  does  not,  then  to  the  testator's  next  of 
kin,  the  result  will  be  the  same ;  for  the  legal  sense  of  the  words 
next  of  kin,  is  next  of  kin  at  the  testator's  death.  1  Rob.  150. 
Holloway  v.  Holloway,  5  Ves.  jr.  399. 

Upon  either  view,  the  plaintiff's  title  must  be  as  next  of  kin  to 
his  father ;  and,  consequently,  he  cannot  maintain  a  suit  against 
bis  grandfather's  executor. 

Ingraham,  in  reply. — It  cannot  be  doubted,  but  that  a  tes- 
128 


J-an.  15, 1829.]       OF   PENNSYLVANIA.  116 

[Thomas  v.  Thomas,  surviving  Executor  of  Thomas.] 

tator  may,  if  he  thinks  proper,  limit  an  interest  to  such  person 
as^hall,  at  a  particular  time  named  by  him,  sustain  a  particular 
character.  *His  intention  is  the  guide  of  the  courts  where  r*  i  -i  7-1 
the  proper  construction  of  his  will  becomes  the  subject  of  ^  J 
discussion  ;  and  that  the  claimant  sustains  the  character  of  the 
particular  legatee,  or  object  of  the  testator's  bounty,  may  be  as- 
certained by  inference,  it  never  having  as  yet  been  contended  that 
a  legatee,  to  take  under  a  bequest,  must  be  absolutely  named  in 
the  will.  Bartlett  v.  King,  12  Mass.  Rep.  537.  The  difficulty,  in 
the  present  case,  has  been  created  by  a  state  of  things  never  con- 
templated by  the  testator,  who  supposed  that  both  powers  \vould 
be  exercised ;  but  still,  if  his  intention  be  clear,  and  not  repugnant 
to  any  known  rule  of  law,  the  courts  will  give  it  effect,  and  their 
leaning  is  so  to  do,  rather  than  disappoint  it  by  any  refined  con- 
struction. 

The  question,  then,  upon  this  bequest,  is  in  relation  to  the 
moiety  bequeathed  in  trust  for  Lewis  Thomas,  during  life,  and 
over  which,  by  will,  he  had  a  power  of  appointment.  Who  are 
we  to  suppose  the  testator  intended  the  reversion  to  go  to  in  the 
event  of  the  non-execution  of  Lewis's  power?  To  say  to  his 
next  of  kin,  including  Lewis,  is  begging  the  question ;  and 
would  be  in  direct  opposition  to  the  leading  provision  of  his 
will,  by  which  he  charged  his  estate  with  all  his  own  debts,  and 
those  which  Lewis  "might  have  contracted  until  the  date  of  his 
will,  but  none  that  he  might  contract  after  that  date."  The 
proper  consti-uction,  therefore,  is,  that  this  was  a  bequest  to  the 
executor  of  Nathan  Thomas,  of  a  moiety  of  the  fund  in  trust  for 
Lewis,  for  life  only,  and  upon  his  death  without  exercising  his 
power  of  appointment,  in  trust  for  the  person  who  should,  at 
that  time,  be  the  next  of  kin  of  the  testator,  which  description 
the  plaintiff  answers. 

It  is  to  be  kept  in  mind,  that  this  is  a  very  inartificially 
drawn  will,  and  that  to  construe  it  by  any  over  refined  rule,  is 
to  destroy  the  intention,  which  is  abundantly  clear ;  and  hence 
the  answer  to  the  suggestion,  that  the  testator  has  not  said,  that 
Lewis's  estate  should  not  pay  Lewis's  debts.  The  testator 
never  supposed  for  a  moment,  that  he  had  given  Lewis  any 
power  over  the  estate,  which  might  subject  it  to  debts  con- 
tracted after  the  date  of  his  will ;  and  though  Lewis  certainly 
might  have  appointed  the  moiety  at  his  death  for  the  payment 
of  his  debts,  his  father  never  contemplated  such  an  exercise  of 
the  power  he  had  given  hira  to  appoint  the  reversion  of  a  fund, 
the  life  interest  in  which  he  had  so  carefully  settled. 

There  is  no  case  precisely  like  this ;  and  the  cases  of  limita- 
tions over  of  real  estate,  depend  upon  principles  which  produce 
confusion  when  applied  to  the  construction  of  bequests  of  per- 

VOL.  I.— 9  1 29 


117  SUPREME  COUllT  [PhiladelphUi, 

[Thomas  v.  Thomas,  surviving  Executor  of  Thomas.] 

sonalty.  The  argument  by  which  those  cases  are  called  in  aid 
of  the  defendant's  construction  of  this  will  is,  that  there  haa 
been  no  disposition  by  the  testator  of  his  whole  interest,  and 
that  even  in  the  case  of  a  personal  estate,  there  must  always  l)e 
some  one  to  take  what  is  not  disposed  of.  This  is  not  denied  as 
a  general  principle ;  but  the  answer  to  it  is,  that  the  testator 
did  dispose  of  the  reversion  in  the  event  of  the  non-execution  of 
r*l  181  *'^^  power  given  to  Lewis,  if  the  *construction  contended 
L  -•  for  on  the  part  of  the  plaintiff  be  the  correct  one,  and 
there  was  no  intestacy  at  all.  The  power  to  appoint  the  rever- 
sion would  have  been  useless  if  the  defendant's  construction  be 
correct ;  for  he  had  complete  power  over  it  upon  its  vesting  in 
him,  in  consequence  of  the  supposed  intestacy  of  Nathan 
Thomas ;  and  the  very  existence  of  this  power  in  the  will,  is 
directly  repugnant  to  the  idea  of  his  intending  to  die  intestate, 
as  to  the  reversion,  and  to  the  construction  that  he  has  not  dis- 
posed of  it ;  nor  is  it  very  easy  to  understand  how  the  doctrine, 
that  a  power  to  appoint  uses  may  be  reserved  to  the  owner  of 
the  fee,  supposing  it  to  be  well  established  doctrine,  which  is  not 
conceded,  can  be  applied  to  a  case  of  personal  estate.  There 
are  many  modifications  of  the  interest  which  a  man  has  in  land, 
which  cannot  take  effect  in  the  case  of  personal  chattels ;  for 
example,  an  estate  tail. 

The  case  most  resembling  this  in  principle,  and  decided  upon 
the  intention,  is  a  very  recent  one,  and  is  to  be  found  in  an 
elementary  writer,  (Roper,  Legacies,  3  Lond.  Ed.)  It  is  the 
case  of  Bird  v.  Wood,  2  Sim.  &  Stu.  400.  The  bequest  was  of 
certain  funds  to  trustees  in  trust,  to  pay  the  interest  to  the  tes- 
tatrix's daughter  for  her  separate  use  for  life ;  and  after  her 
decease,  to  the  daughter's  appointment  by  deed  or  will ;  and, 
in  default  of  appointment,  for  the  testator's  next  of  kin,  to  be 
considered  as  a  vested  interest  from  the  testatrix's  death,  ex- 
cept as  to  any  child  that  might  be  afterwards  born  of  her 
daughter.  The  daughter  died  without  any  child,  and  without 
executing  any  appointment.  Her  husband  took  out  letters  of 
administration  to  her,  and  claimed  the  fund ;  but  Sir  John 
Leach,  Vice-Chancellor,  held,  that  the  persons,  who  at  the  tes- 
tatrix's death,  would  have  been  her  next  of  kin,  if  her  daughter 
had  then  been  dead  without  children,  were  clearly  intended ; 
that  the  daughter  could  not  be  such  next  of  kin,  for  the  persons 
intended  were  to  take  at  her  death  ;  and  must  have  been  living 
at  the  death  of  the  testatrix  ;  for  their  interests  were  then  to  be 
vested.  The  case  of  Holloway  v.  Holloway,  was  cited  for  the 
husband ;  but  the  answer  there  was,  as  here,  that  it  was  clear 
that  the  testatrix  did  not  mean  to  die  intestate  as  to  anything, 
and  that  the  will  authorized  Ihe  exclusion  of  the  daughter,  l>e- 
130 


Jan.  15,1829.]       OF   PENNSYLVANIA.  118 

[Thomas  v.  Thomas,  surviving  Executor  of  Thomas.] 

cause,  without  excluding  her,  it  was  impossibl6  to  make  sense 
of  it. 

The  opinion  of  the  court  was  delivered  by 

Huston,  J. — It  has  been  contended  that  the  power  of  ap- 
pointment does  not  prevent  the  estate  or  money  from  vesting  in 
default  of  appointment.  This,  however,  is  where  by  the  will, 
the  estate  is  limited  expressly  in  case  no  appointment  is  made. 
Sugden  on  Powers,  148,  151.  On  recurring  to  the  authorities 
cited,  it  will  be  found,  that  the  case  in  1  Vez.  209,  was  a  devise 
to  the  testator's  daughter  of  three  thousand  pounds,  for  the  use 
of  her  younger  children,  to  be  by  her  distributed  among  them, 
in  such  a  manner  and  shares  as  she  shall  think  fit,  and  it  was 
held  to  vest  in  the  children.  It  is  the  *same  as  if  the  r*i  i  q-i 
devisor  had  given  it  to  her  younger  children  equally,  ^  '  -' 
unless  she  directed  otherwise ;  and  the  chancellor  expressly 
says,  "  It  might  have  been  different  had  he  given  it  to  his 
daughter  for  life,  and  afterwards  to  her  younger  children,  be- 
cause, then  it  would  be  contingent  and  a  devise  over." 

The  case  in  2  Ves.  209,  is  the  same ;  a  devise  to  younger 
children  in  such  shares  as  their  father  should  appoint. 

The  case  in  Ambler,  562,  is  of  the  same  kind,  and  nearly  in 
the  same  words,  and  it  was  held  to  vest  in  the  children,  and  the 
case  concludes,  the  distinction  is  between  the  case  where  a  sum 
of  money  is  provided  for  portions  of  children,  and  the  father 
and  mother  have  only  the  power  to  fix  the  time  of  payment,  and 
quantum  for  each  child ;  and  where  no  sum  is  secured  but  in 
case  of  the  a})])ointment. 

This  case  differs  from  all  of  them,  but  comes  nearer  that  sup- 
posed in  the  concluding  words.  Here  there  is  no  person  named 
or  designated  to  whom  the  appointment  is  to  be  made.  The 
testator  stops  at  the  death  of  Lewis ;  beyond  that  he  does  not 
direct  it. 

The  distinction  seems  to  be,  and  the  point  contended  for  by 
Sugden  is,  that  if  the  testator  after  the  life  estate  to  Lewis,  had 
given  the  property,  if  not  disposed  of  by  Lewis,  over  to  a  third 
person,  it  would  have  vested  in  that  person,  subject  to  be  di- 
vested by  an  appointment  by  Lewis ;  but  that  is  not  this  case. 

Certain  actions  for  real  estate,  in  England,  require  a  person 
seised  of  the  freehold  to  be  always  in  existence,  on  whom  the 
process  may  be  served,  and  the  doctrine  that  the  fee  cannot  be 
in  abeyance,  has  been  a  means  to  prevent  perpetuities ;  but 
every  form  of  action  relating  to  personal  estate,  may  be  brought 
against  the  person  in  possession  of  it ;  and  besides,  it  vests,  on 
the  death  of  the  testator,  in  the  executor  for  the  purpose  of  leav- 
ing debts  and  legacies,  whether  directed  to  do  so  l)y  the  will  or 

131 


119  SUPREME  COUItT  [Philadelphia, 

[Thomas  v.  Thomas,  surviving  Executor  of  Thomas.] 

not.  It  does  not  pass  out  of  the  executor  without  his  assent, 
even  to  a  legatee,  and  when  directed  to  pass  to  a  legatee  for  a 
limited  time  or  for  a  special  purpose,  the  absolute  interest  may 
still  continue  in  the  executor,  if  necessary  to  fulfil  the  intention 
of  the  testator,  or  to  enable  him  to  do  his  duty  as  executor ; 
for  example,  suppose  immediately  before  or  at  the  death  of 
Lewis,  in  this  case,  a  debt  of  the  testator,  not  barred  by  limita- 
tion, had  been  made  known  to  the  executor,  or  recovered  against 
him  by  suit  at  law ;  this  money  oould  have  been  legally  applied 
to  the  payment  of  such  debt. 

This  matter  lately  came  before  this  court,  in  a  case  much  dis- 
cussed, in  which  the  judges,  though  not  unanimous  in  other 
points,  agreed  on  the  construction  of  a  devise  such  as  this.  I 
consider  the  point  settled  by  that  case ;  and,  if  not,  I  would 
consider  the  intention  of  the  testator  to  be  so  plainly  expressed 
in  this,  as  to  govern  the  construction,  unless  it  would  contradict 
some  long  established  rule  of  law,  for  most  clearly  the  testator 
devised  his  property  in  this  will,  expressly  for  the  purpose  of 
r*19m  preventing  his  son  *from  squandering  it.  It  is,  none 
•-  -'of  it,  given  over  to  strangers,  nor  intended  to  go  to 
strangers.  The  widow  and  mother  of  Lewis,  is  to  have  all  dur- 
ing her  life,  with  power  of  disposition ;  evidently,  that  if  Lewis 
did  not  become  more  prudent,  she  might,  by  will,  secure  it 
against  his  imprudence  ;  if  she  did  not,  the  father  provides  for 
half  of  it;  Flintham's  Appeal,  11  Serg.  &  Rawle,  16,  settles, 
that  the  widow  and  Lewis,  each  took  an  estate  for  life ;  but  for 
that,  I  should  have  doubted  whether  Lewis,  at  least,  did  not 
take  absolutely. 

As  to  the  part  devised  to  the  widow,  he  gives  all  to  her  dur- 
ing her  natural  life,  and  at  her  death  one-half  to  be  at  her  dis- 
posal. She  did  not  dispose  of  it.  It  was  then  personal  estate 
of  the  testator,  remaining  after  payment  of  debts  undisposed  of, 
and  went  to  Lewis  as  next  of  kin.  This  part  vested  in  him  ab- 
solutely, and  is  liable  for  his  debts. 

The  other  half  remaining  at  the  widow's  death  was  to  be  put 
at  interest  for  the  use  and  benefit  of  his  son  Lewis,  and  he  to 
receive  the  interest  annually  during  his  life,  and  at  her  decease 
the  principal  and  interest  to  be  at  his  disposal.  This  has,  as  I 
said,  been  held  a  life  estate.  Real  estate  given  to  a  man  for 
life,  does  not  descend  to  his  heirs,  nor  does  personal  estate 
given  for  life,  go  to  his  executors  or  next  of  kin.  Lewis  had 
the  use  during  his  life,  with  the  power  of  disposing  of  it  at  his 
death.  If  it  went  to  his  next  of  kin,  he  would  have  been  abso- 
lute owner,  and  not  for  life.     Lewis  did  not  dispose  of  it. 

This  half,  then,  was  in  the  hands  and  possession  of  the  de- 
fendant as  executor  of  the  testator,  and,  being  undisposed  of  by 
132 


Jan.  15,  1829.]     OF  PENNSYLVA2JIA.  120 

[Thomas  v.  Thomas,  surviving  Executor  of  Thomas.] 

the  will,  goes  to  the  next  of  kin  of  the  testator.  The  plaintiff 
is  next  of  kin  to  the  testator,  and  entitled  to  this  half.  The 
administrator  of  Lewis  is  entitled  to  the  first  half  which  fell  to 
Lewis  absolutely  at  the  death  of  his  mother.  If  Lewis  left 
debts  unpaid,  they  must  be  discharged ;  and,  if  any  surplus 
remain,  that  will  go  to  the  plaintiff  as  next  of  kin  to  Lewis,  but 
will  be  demandable  from  the  defendant,  in  his  capacity  of  ad- 
ministrator of  Lewis. 

Gibson,  C.  J. — It  seems  to  me,  the  plaintiff  can  take  nothing 
as  next  of  kin  to  the  testator;  nor  claim  paramount  to  his 
father,  unless  by  implication  under  the  will.  It  is  difficult  to 
comprehend  how  the  vesting  of  an  interest  undisposed  of  by  the 
will,  shall  await  the  happening  of  a  contingency ;  or  how,  where 
there  is  an  express  bequest  for  life  coupled  with  a  power  of 
appointment,  the  testator  shall  be  said  to  die  intestate,  or  other- 
wise, as  to  the  residue,  just  as  the  person  to  appoint  may  after- 
wards happen  to  execute  the  power.  A  power  to  appoint,  is 
not  an  interest  in  the  thing  bequeathed ;  otherwise  a  power  to 
dispose  of  the  absolute  property,  would  always  be  a  bequest  of 
the  absolute  property,  which  it  clearly  is  not ;  and,  it  seems  to 
me,  that  whatever  is  not  disposed  of  by  the  will,  sinks  into  the 
residuum,  and  vests  in  the  next  of  kin  necessarily  at  the  death 


[*121] 


of  the  testator,  subject,  however,  to  be  divested  by  an 
*exercise  of  the  power  of  appointment.  But,  although 
the  plaintiff,  as  it  seems  to  me,  cannot  take  as  next  of  kin,  a 
doubt  occurred  during  the  argument,  whether  to  effect  the  mani- 
fest intention  that  the  property  should  be  exempt  from  the 
legatee's  debts,  and  to  prevent  the  will  frofn  failing  of  effect  al- 
together, we  ought  not  to  imply  a  bequest  over,  in  the  event  of  a 
failure  to  appoint.  And,  undoubtedly,  we  ought,  if  there  were 
anything  to  designate  the  person  to  take.  But  there  is  nothing 
to  designate  the  plaintiff,  except  that  he  is  the  next  of  kin  to  the 
immediate  object  of  the  testator's  bounty  ;  a  circumstance  much 
too  slight  to  found  an  implication.  Where  a  testator  omits  to 
provide  for  an  event,  which  lie  probably  would  have  done  had 
the  particular  instance  occurred  to  him,  a  court  of  justice  cannot 
repair  the  defect  by  inserting  the  necessary  clause.  The  authori- 
ties for  this  are  collected  in  Iloj>er  on  Legacies,  Ch.  vi.  Sect.  7, 
where  they  may  be  consulted.  Here  the  plaintiff  would  proba- 
bly have  been  provided  for,  had  the  contingency  which  has  since 
happened,  been  foreseen.  But  this  is  by  no  means  certain.  He 
evidently  was  not  intended  to  take  in  every  event ;  else  there 
would  have  been  a  positive  limitation  over,  instead  of  subjecting 
the  legacy  to  his  father's  power.  It  seems,  then,  that  as  nothing 
was  bequeathed  to  the  father  but  what  vested  in  him  by  op- 

133 


121  SUPREME  COURT  [Fhiladclphia, 

[Thomas  v.  Thomas,  surviving  Executor  of  Thomas.] 

eration  of  law,  an  interest  for  life,  superaddeil  to  the  al>solute 
property,  being  a  legal  absurdity,  the  entire  bequest  fails  of 
effect ;  so  that  the  proj)erty  in  dis})ute  having  vested  absolutely 
in  the  father,  is  subject  to  his  debts  in  a  course  of  administra- 
tion. 

Rogers,  J.,  concurred  with  Gibson,  C.  J. 

Judgment  for  the  plaintiff. 

Cited  by  Counsel,  1  M.  249 ;  4  E.  444 ;  2  S.  221. 


[Philadelphia,  Jakdart  12, 1829.] 
Floyd  against  Browne,  Administrator  of  Truxton. 

IN  ERROR. 

By  recovering  a  judgment  in  trespass  for  carrying  away  the  plaintiff's  goods, 
his  property  in  the^oods  is  divested.  Consequently,  such  a  judgment  is  a  bar 
to  an  action  of  indebitatus  assumpsit,  against  any  one,  for  the  proceeds  of  the 
sale  of  the  goods  which  were  the  subject  of  the  trespass. 

From  the  record  of  this  case,  returned  on  a  writ  of  error  to 
the  District  Court  for  the  city  and  county  of  Philadelphia,  it 
appeared,  that  in  the  court  below,  it  was  an  action  of  assumpsit 
for  money  had  and  received,  brought  by  the  plaintiff  in  error, 
John  Floyd,  against  the  defendant  in  error,  Aquilla  A.  Browne, 
administrator  de  bonis  non  cum  testamento  annexo  of  Thomas 
r*l  991  Truxton,  deceased,  who,  in  *his  lifetime  was  High  Sheriff 
L         -'of  the  city  and  county  of  Philadelphia. 

The  following  were  the  circumstances  upon  which  the  plaintift's 
claim  was  founded:  To  March  Term,  1819,  of  the  District 
Court,  Caleb  Cridland  issued  a  fieri  facias  against  a  certain 
George  Green.  The  sheriff  levied  upon  goods  belonging  to  the 
plaintiff,  (Floyd),  and  sold  them  for  the  gross  sum  of  twelve 
hundred  and  thirty-five  dollars  and  ninety-four  cents.  In  making 
the  levy,  Benjamin  Cridland,  Robert  Black,  Peter  Care,  Jr., 
Stephen  E.  Fotterall  and  George  F.  Alberti,  a.ssisted  the  said 
Caleb  Cridland.  Floyd  brought  an  action  of  trespass  m  et  ar- 
mis,  against  Benjamin  Cridland,  and  the  others  who  assisted 
him  in  the  levy,  and  obtained  a  verdict  and  judgment  for  two 
thousand  dollars  against  Caleb  and  Benjamin  Cridland,  and 
signed  judgment  by  default  against  Robert  Black,  Peter  Care, 
Jr.,  Stephen  E.  Fotterall  and  George  F.  Alberti,  the  other  de- 
fendants. Execution  was  issued  against  all  these  defendants, 
and  the  money  made  out  of  the  goods  and  chattels  of  Fotterall. 
Fotterall  removed  the  record  by  writ  of  error  to  the  Supreme 
Court,  where,  on  the  2d  of  April,  1821,  the  judgment  was  re- 
134 


Jan.  12,  1829.]      OF   PENNSYLVANIA.  122 

[Floyd  V.  Browne,  Administrator  of  Truxton.] 

versed  as  to  all  the  defendants  except  Caleb  and  Benjamin  Crid- 
land,  and  the  execution  as  to  all.  (See  6Serg.  &  Rawle,  412).  On 
the  19th  of  May,  1821,  Floyd  brought  this  action  against  the 
sheriff,  to  re(;over  the  proceeds  of  the  sale  of  his  goods  wrong- 
fully taken  in  execution.  The  defendant  pleaded  non  (Visampsit 
and  payment,  and  a  special  plea  of  former  recovery,  which  set 
forth  the  proceedings  in  the  District  Court  and  Supreme  Court, 
above  stated,  in  the  suit  brought  by  Floyd  against  Caleb  Crid- 
land  and  others.  To  this  plea  the  plaintiff  demurred,  and  the 
court  below  gave  judgment  for  the  defendant  on  the  demurrer. 
The  plaintiff  thereupon  took  out  a  writ  of  error. 

J.  It.  Ingersoll  and  P.  A.  Broume,  for  the  plaintiff  in  error. 
— The  question  is,  whether  a  plaintiff  who  has  brought  an  action 
of  trespass  against  certain  individuals,  for  taking  away  his  goods, 
and  who  has  obtained  judgment  against  them,  but  no  satis- 
faction, can  in  an  action  for  money  had  and  received,  recover 
from  the  sheriff,  the  proceeds  of  the  sale  of  those  very  goods 
which  have  been  tortiously  taken  from  him  ?  A  man  does  not 
make  the  goods  of  another  his  own  by  wrongfully  taking  them,  nor 
does  a  man  lose  his  title  to  property,  by  being  illegally  dispos- 
sessed of  it.  The  commission  of  a  trespass  does  not  change 
the  property.  The  owner  may,  indeed,  waive  the  tort,  and  pro- 
ceed as  if  it  were  a  contract.  Hence,  in  trover,  in  which  a  fair 
finding  is  alleged,  and  not  a  tortious  taking,  a  recovery  of  judg- 
ment vests  the  ownership  of  the  goods  in  the  defendant,  and 
substitutes  for  them  damages  which  are  measured  by  their  value. 
Bull.  N.  P.  32.  But  a  judgment  in  trespass  or  larceny  leaves 
the  property  unchanged,  and  it  may  be  pursued  into  the  hands 
of  any  one  to  whom  it  can  be  traced.  There  are  cases  in  which 
a  failure  to  prove  property  in  one  form  of  action  is  a  bar  to 
setting  the  same  property  in  ^another  form.  But  there  p^,  .-,.,-1 
is  no  case  to  show  that  succeeding  in  the  proof  of  prop-  ■-  "'  ^ 
erty  in  one  form,  must  induce  a  failure  in  a  similar  attempt  in 
another  form.  In  Kitchen  et  al.  v.  Campbell,  3  Wils.  304  ;  2  W. 
Black.  R.  779,  S.  C,  judgment  was  given  for  the  defendant,  be- 
cause in  a  previous  action  of  trover  for  the  same  goods,  the 
plaintiff  had  failed.  If  replevin  and  trespass,  wdiich  are  both 
actions  of  tort,  are  brought  together,  the  rule  is,  not  that  a  re- 
covery in  one,  will  bar  a  recovery  in  the  other,  but  that  the  pen- 
dency of  one  will  prevent  the  further  prosecution  of  the  other. 

Though  in  some  cases  a  recovery  in  trespass  is  a  bar  to  another 
recovery  for  the  same  trespass,  yet  there  is  no  case  in  which  a 
recovery  in  trespass  is  a  bar  to  an  action  of  assumpsit.  It  is  an 
important  feature  of  this  case,  that  the  sheriff  was  no  party  to 
the  trespass.    The  plea  does  not  allege  that  he  was,  and  the  fact 

135 


123  SUPREME  COURT  [Philadelphia, 

[Floyd  V,  Browne,  Administrator  of  Truxton.] 

was  otlienvise.  He  neither  was,  nor  could  be  a  party  to  the  ac- 
tion, which  was  trespass  quare  clauimin  fregit.  The  sheriff  never 
entered  the  plaintiff'^s  close.  He  found  the  goods  elsewhere,  and 
sold  thcni  as  he  found  them.  All  that  the  plea  alleges  is,  that 
the  judgment  so  recovered  formerly,  was  for  the  same  cause  of 
action  as  that  in  which  the  defendant  is  now  impleaded.  This  is 
true,  so  far  as  the  identity  of  the  goods  goes,  and  so  far  as  the 
defendant  may  have  been  an  accessory  after  the  fact  to  the  tres- 
pass. Beyond  these  points  they  cannot  be  identified.  It  is  pre- 
cisely as  if  the  plaintiff*  had  traced  his  goods  into  the  hands  of 
a  bailee  or  a  stranger,  or  rather  as  if  he  had  traced  his  money  into 
the  hands  of  a  stranger,  and  then  demanded  it. 

Two  positions  may  be  maintained  :  1.  There  is  nothing  in  this 
case  to  prevent  a  recovery  from  a  joint  trespasser,  even  in  tres- 
pass. 2.  Multo  fortiori,  there  is  nothing  to  prevent  a  recovery 
in  assumpsit. 

1.  To  bar  a  second  action  of  trespass  for  the  same  joint  act, 
there  must  have  been  either  very  satisfaction,  accepted  as  such, 
or  at  least  a  valid  execution,  which,  if  not  actually  available, 
must  have  had  its  course  without  let  or  impediment  from  the 
law,  the  court  or  the  party  defendant.  This  principle  is  dedu- 
cible  from  the  earliest  authorities,  as  well  as  from  those  of  modern 
date.  14  Vin.  Ab.  612  ;  Judgment  (T.)  pi.  2  ;  Id.  607  ;  Judg- 
ment (P.)  pi.  1,  2  ;  20  Vin.  Ab.  540  ;  Tres-jmss  (R.)  11  ;  Broome 
V.  Wooton,  Yelv.  67  ;  Cro.  Jac.  73,  s.  c. ;  Coke  v.  Jenner,  Hob. 
66  ;  Cro.  Ch.  75  ;  Claxton  v.  Smith,  3  Mod.  86  ;  2  Show.  484  ; 
Bull.  N.  C.  P.  49;  Sparry's  Case,  5  Co.  61 ;  Ferrer's  Case,  6 
Co.  7  ;  Cro.  El.  667  ;  Felter  v.  Beale,  1  Salk.  11 ;  Fields  v.  Law, 

2  Root,  320 ;  Livingston  v.  Bishop,  1  Johns.  R.  290 ;  Knox  v. 
Work,  1  Browne,  101. 

If  the  plaintiff"  may  proceed  against  several  trespassers  until 
he  has  received  satisfaction,  it  is  difficult  to  imagine  any  prin- 
ciple which  could  stand  in  the  way  of  a  proceeding  against  a 
stranger  who  has  received  his  money  arising  out  of  the  very 
r*1 941  g<^o^^  which  were  the  *subject  of  the  trespass,  and  who, 
L  -^  therefore,  does  not  even  stand  in  the  situation  of  a  co- 
trespasser.  That  an  execution  issued  in  this  case,  amounts  to 
nothing.  It  was  reversed  and  made  void,  ab  initio.  Cridland 
V.  Floyd,  6  Serg.  &  Rawle,  412.  It  could  not  be  construed  into 
an  election  ;  and  if  it  could  w'hen  it  first  issued,  yet  having  been 
avoided,  it  was  unavailing,  and,  consequently,  no  election  either 
in  fact  or  law.    Parsons  v.  Lloyd,  3  Wils.  345  ;  Read  v.  Markle, 

3  Johns.  523;  Patterson  v.  Swan,  9  Serg.  &  Rawle,  16. 

/.  Randall,  for  the  defendant  in  error. — The  defendant  has 
long  since  paid  away  the  money  to  the  plaintiff"  in  the  execution 
136 


/an.  12, 1829.]       OF  PENNSYLVANIA.  124 

[Floyd  V.  Browne,  Administrator  of  TruxLon.] 

under  which  it  was  raised,  and  an  experiment  is  now  made  by  a 
third  person  to  recover  that  amount  in  an  action  of  indebitatus 
assumpsit.  No  such  action  was  ever  brought  before  in  any  court. 
That  the  recovery  of  a  judgment  in  trespass  is  a  bar  to  any  sub- 
sequent action,  even  without  execution,  is  fully  established. 
Broome  v.  Wooton,  Cro.  Jac.  73 ;  Yelv.  67  ;  Bull.  N.  P.  20 ; 
Rawlinson  v.  Oriett,  Carth.  96 ;  Sparry's  Case,  5  Co.  61  ;  Fer- 
rer's Case,  6  Co.  7.  This  rule  is  fully  adopted  in  Virginia,  Ani- 
monett  v.  Harris,  1  Hen.  <fe  Munf.  488,  498.  And  in  Kentucky, 
Ewiug  V.  Foul,  1  Marsh.  457.  The  case  of  Livingston  v.  Bishop, 
1  Johns.  R.  290,  stands  alone  against  all  these  authorities.  In 
reference  to  that  case  it  is  worthy  of  remark,  that  it  did  not 
come  before  the  court  in  such  a  way  as  to  give  rise  to  the  ques- 
tion ;  added  to  which,  Livingston,  J.,  and  Spencer,  J.,  did  not 
concur  with  the  majority  of  the  court.  In  the  elementary  trea- 
tises too,  the  principle  is  laid  down,  that  a  judgment  in  trespass, 
is  a  bar  to  another  action  for  the  same  trespass.  1  Chitty  on  PI. 
76;  Esp.  on  Evidence,  192.  So  far  is  it  from  being  necessary 
even  to  issue  execution,  that  in  the  books  of  precedent,  the  form 
of  the  plea  is  that  the  judgment  remains  unsatisfied.  2  Chittv 
on  PI.  437,  438;  3  Weutw.  143;  Story  PI.  132.  And  1  Saund. 
67,  there  is  a  precedent,  in  which  there  is  an  averment  of  satis- 
faction on  a  recovery  in  foreign  attachment ;  but  the  other  pre- 
cedents contain  no  such  averment.  The  action  of  trespass  is  a 
joint  remedy,  and  must  be  pursued  jointly,  which  distinguishes 
it  from  the  case  of  several  actions  on  a  promissory  note,  in  rela- 
tion to  which  the  rights  and  the  remedies  are  distinct.  A  release 
to  one  joint  trespasser  is  a  release  to  all ;  not  on  the  ground  of 
satisfaction,  but  of  the  extinguishment  of  the  cause  of  action  ; 
1  Hen.  &  Munf.  489.  And  a  judgment  is  a  higher  satisfaction 
than  a  release;  Putt  v.  Koyston,  2  Show.  223  (211),  A  re- 
covery in  trespass  of  the  value  of  the  goods  vests  the  title  to 
them  in  the  defendant  in  the  action  of  tresj^ass.  The  plaintiff's 
title  is  extinguished  by  the  judgment.  That  such  is  the  law  in 
trover  is  familiar  to  every  one  ;  Adams  v.  Broughton,  2  Str. 
1078;  Andrews,  19.  Indeed  this  is  not  denied;  but  it  is  said 
there  is  no  case  in  which  it  has  been  decided,  that  a  judgment 
in  trespass  vests  the  title  in  the  defendant ;  Rice  v.  King,  7 
Johns.  20,  is  to  the  very  point.  It  was  there  held,  that  a  re- 
covery in  trespass  was  a  bar  to  an  *action  of  assumpsit  r^^n--] 
for  the  same  cause.  So  a  recovery  in  trespass,  is  a  bar  L  J 
to  a  subsequent  action  of  trover;  1  Nott.  &  M'Cord,  1.  It  is  in 
fact  a  general  rule,  that  wherever  there  is  a  recovery  against  a 
trespasser,  the  property  which  was  the  subject  of  the  trespass 
vests  in  the  trespasser,  and  no  action  in  any  form  can  be  main 
iained  for  it;  Curtis  v.  Groat,  6  Johns.  168;  1  Hen.  &  Munf. 

137 


126  SUPREME  COURT  YPUladelpUa, 

[Floyd  V.  Browne,  Administrator  of  Truxton,] 

449;  13  Serg.  &  Rawle,  247;  12  Mod.  324;  1  Chitt.  PI.  (Old 
Edit.)  89,  90 ;  Pollex,  641. 

It  is  not  necessary  to  advert  to  the  effect  of  the  execution 
upon  the  opposite  doctrine.  The  moment  it  was  issued,  the 
plaintiff  had  determined  his  election. 

If  the  plaintiff  in  this  case  should  recover,  the  sheriff  will  be 
without  remedy;  for  the  bond  of  indemnity  he  received,  will  not 
cover  the  case;  while  Floyd,  who  is  still  the  owner  of  the  judg- 
ment against  the  Oridlands,  may  recover  the  whole  amount  of 
it  from  them,  which  a  recovery  in  this  case  could  not  prevent. 

The  opinion  of  the  court  was  delivered  by 

Gibson,  C.  J. — A  plaintiff  is  not  compelled  to  elect  between 
actions  that  are  consistent  with  each  other.  Separate  actions 
against  a  number  who  are  severally  liable  for  the  same  thing,  or 
against  the  same  defendant  on  distinct  securities  for  the  same 
debt  or  duty,  are  consistent,  being  concurrent  remedies.  Tres- 
pass is,  in  its  nature,  joint  and  several ;  and  in  separate  actions 
against  joint  trespassers,  being  consistent  with  each  other,  noth- 
ing but  actual  satisfaction  by  one  will  discharge  the  rest.  So 
far  the  law  is  clear.  Here,  then,  the  plaintiff  had  impleaded 
six  jointly,  and  obtained  judgment,  but  without  actual  satisfac- 
tion, against  two ;  and  he  pow  brings  indebitatus  assumpsit 
against  a  seventh  for  the  price  obtained  for  the  goods  which 
were  the  subject  of  the  trespass.  The  point  of  defence  mainly 
relied  on,  is  that  the  plaintiff's  property  in  the  goods,  was  di- 
vested by  the  former  recovery ;  and  consequently,  that  he  can- 
not maintain  an  action  founded  exclusively  on  property  in  the 
goods,  or  the  price  of  them.  It  is  not  easy  to  see  how  this  is 
to  be  answered.  It  will  not  do  to  say  that  (he  present,  though 
difl'ering  in  form,  is  in  substance  an  action  to  recover  satisfac- 
tion for  a  trespass,  and  consequently,  that  the  form  is  imma- 
terial. There  is,  in  fact,  a  substantial  difference.  The  cause 
>?f  action  in  trespass  and  in  assumpsit,  is  as  distinct  in  sub- 
stance, as  the  actions  are  different  in  form.  Trespass  lies  only 
for  an  injury  to  the  possession ;  and  damages  are  recoverable 
for  the  taking,  which  is  the  gist  of  the  action,  separately  from 
the  value  of  the  goods,  the  asportation  being  a  circumstance 
merely  of  aggravation.  Assumpsit  lies  for  money  received  as 
the  price  of  the  goods,  to  the  plaintiff's  use,  the  detention  of 
which,  is  the  gist  of  the  action,  the  trespass  being  waived,  and 
not  entering  at  all  into  the  estimate  of  the  damages ;  it  being 
well  settled,  that  nothing  is  recoverable  beyond  what  was  actu- 
ally received.  If  there  were  no  difference  as  to  substance,  and 
r*l9fi1  *^'^  form  *of  the  remedy  were  immaterial,  a  plaintiff 
•-  -•  might  have  several  actions  of  assumpsit  against  those 
138 


Jan.  12,  1829.]      OF   PENNSYLVANIA.  126 

[Floyd  V.  Browne,  Administrator  of  Truxton.] 

who  had  jointly  sold  his  goods,  on  the  ground  of  their  having 
been  obtained  by  a  trespass,  although  the  promise  whicli  the  law 
implies  from  a  joint  receipt  of  the  price,  is  also  joint.  He  cer- 
tainly might  just  as  well  proceed  severally  in  assumpsit  against 
all,  as  in  trespass  against  some,  and  in  assumpsit  against  the 
rest.  But  there  is  this  further  substantial  difierence,  that  the 
action  in  the  one  case,  is  founded  on  a  contract  which  survives, 
and  in  the  other,  on  a  tort,  which,  at  the  common  law,  does  not. 
In  fact,  the  attempt  here  is  to  make  an  administrator  liable.  A 
plaintiff  must  proceed  consistently.  He  cannot  waive  a  part  of 
the  injury  to  give  form  to  his  action,  and  resume  it  to  give  sub- 
stance. In  waiving  the  trespass  he  dispenses  with  whatever 
could  give  character  to  the  injury  as  such,  and  treats  as  a  sub- 
stantive and  distinct  cause  of  action,  what  would,  in  an  action 
of  trespass  proper,  be  merely  a  circumstance  of  aggravation. 
In  an  action  of  assumpsit,  therefore,  he  cannot  claim  the  benefit 
of  any  of  the  incidents  or  attributes  which  ap])ertain  to  an  action 
of  trespass.  The  consequence  is,  that  the  plaintiff  here  having 
recovered  in  trespass,  cannot  again  recover  in  an  action  which 
LS  not  a  concurrent  remedy ;  a  recovery  in  trespass  producing 
the  same  bar  that  is  produced  by  a  recovery  in  trover,  against  a 
recovery  in  assumpsit  of  the  price  of  the  same  goods. 

Judgment  affirmed. 

Cited  by  Counsel,  3  Penn.  E.  463 ;  1  E.  355 ;  4  E.  277 ;  1  Wh.  311 ;  3  Wr. 
66 ;  31  S.  491. 

Cited  by  the  Court,  3  W.  &  S.  107 ;  5  W.  &  S.  17. 


[PHUiADELPHIA,  JANUARY  15,  1829.] 

Elliott  and  Others,  Executors  of  Field,  against  Walker 
and  Another,  Administrators  of  Wilson. 

Cheever  and  Fales  against  the  same. 

IN  ERROR. 

Tlie  plaintiff  being  the  defendants'  supercargo,  sold  their  goods  on  credit  at 
a  foreign  port,  and  procured  from  a  house  at  that  port  advances,  on  an  assign- 
ment of  the  debts  due  from  the  purchasers  of  the  cargo.  These  advances  he 
remitted  to  his  shippers  in  a  return  cargo.  In  his  account  sales  of  tlie  outward 
cargo  rendered  to  one  of  the  shippers,  he  did  not  mention  the  names  of  the 
purchasers,  but  concluded  it  with  "  error,  omissions,  and  outstanding  debts  ex- 
cepted." In  that  rendered  to  the  other  shipper  he  mentioned  the  names  of  the 
purchasers,  and  concluded  the  account  with  "  errors  and  omissions  excepted." 
The  purchasers  having  become  insolvent,  the  foreign  house  whicli  had  made 
the  advances,  attached  the  plaintiff  s  property  and  recovered  the  amount  of 
their  advances,  and  the  plain tifi  brought  suit  against  the  consignors  for  reim- 
bursement.   Held,  that  he  was  entitled  to  recover. 

139 


126  SUPREME   COURT  iFhiladelphia, 

[Elliott  and  others,  Executors  of  Field,  v.  Walker  and  another,  Administra- 
tors of  Wilson.] 

Writ  of  error  to  the  District  Court  for  the  city  and  county 
of  Philadelphia.  The  defendants  in  error  were  the  plaintiffs 
below. 

r*127T  *^°  these  two  causes,  which  depended  upon  the  same 
L  J  facts  and  principles,  a  case  was  stated  for  the  opinion 
of  the  court  below,  the  substance  of  which  was  as  follows : 

On  the  14th  of  March,  1820,  the  defendants  consigned  cer- 
tain merchandize  to  John  Wilson,  the  plaintiff's  intestate,  as 
supercargo  of  the  schooner  Baltimore,  to  be  sold  at  Port-au- 
Prince,  for  account  and  risk  of  the  consignors,  with  general 
discretionary  powers  on  the  subject.  Wilson  sold  the  goods  at 
Port-au-Prince,  on  credit,  and  by  a  letter  dated  the  20th  of 
April,  informed  the  shippers  that  he  had  sold  part  of  the  con- 
signment on  a  short  credit,  but  did  not  state  the  names  of  the 
purchasers  nor  the  term  of  credit.  In  his  letters  of  the  26th  of 
April  and  the  5th  of  May,  he  advises  Field  that  he  had  not  sold 
his  nankeens,  but  informs  Cheever  &  Fales  that  he  had  been 
fortunate  with  theirs,  as  the  remainder  of  them  had  been  dis- 
posed of  at  a  short  credit.  In  his  letter  of  the  13th  of  June, 
he  states,  that  he  will  ship  the  net  proceeds  of  sales  in  coffee, 
but  that  not  having  received  the  Government  expenses,  he  can- 
not exactly  state  the  sum,  which  by  the  next  opportunity  to 
America  he  will  do,  enclosing  a  bill  of  lading  at  the  same  time. 
On  the  17th  of  June,  1820,  Wilson  borrowal  of  Messrs.  David 
Corry  &  Co.,  of  Port-au-Prince,  the  merchants  with  whom  he 
transacted  his  business,  an  advance  of  the  net  proceeds  of  the 
whole  cargo,  amounting  to  about  the  sura  of  seventeen  thousand 
five  hundred  dollars,  leaving  that  house  to  reimburse  themselves 
by  collecting  the  outstanding  debts  due  upon  the  sales,  from  the 
different  purchasers.  This  advance  was  made  in  green  coffee, 
which  was  shipped  from  Port-au-Prince,  to  the  several  shippers 
by  the  schooner  Baltimore,  in  the  proportion  of  the  proceeds  of 
their  several  invoices.  In  the  account  of  the  sales  of  Field's 
shipment,  the  names  of  the  purchasers  were  not  mentioned,  but 
it  concluded  with  "  errors,  omissions,  and  outstanding  debts  ex- 
cepted." In  that  rendered  to  Cheever  &  Fales  the  names  of 
the  purchasers  were  given,  and  the  account  concluded  with 
"errors  and  omissions  excepted."  In  consequence  of  a  de- 
structive fire  which  laid  waste  a  great  part  of  the  city  of  Port- 
au-Prince,  a  few  weeks  after  these  sales  were  made,  several  of 
the  purchasers  of  the  defendant's  goods  became  wholly  insolvent, 
and  the  balances  due  from  them  were  lost.  The  house  of  Corry 
&  Co.,  demanded  payment  of  their  advances  from  Wilson,  by 
whom  they  were  referred  to  the  consignors,  who  neglected  to 
make  payment. 
140 


Jan.  15,  1829.]     OF  PENNSYLVANIA.  127 

[Elliott  and  others,  Executors  of  Field,  v.  Walker  and  another.  Administra- 
tors of  Wilson.] 

John  Wilson  died  at  Philadeljjhia,  in  the  summer  of  1821, 
and  administration  on  his  estate  was  granted  to  the  plaintiffs. 
On  the  4th  of  October,  1821,  Messrs.  Corry  &  Co.,  attached 
the  property  of  Wilson  at  Port-au-Prince,  for  the  balances 
claimed  by  them,  and  recovered.  On  the  3d  of  January,  1822, 
by  order  of  the  court  at  Port-au-Prince,  the  garnishees  paid 
over  to  Messrs.  Corry  &  Co.  the  amount  of  their  claims,  with 
costs ;  and  the  *present  suits  were  brought  to  recover  from  p^,  c)q-\ 
the  def(!ndants  the  amount  so  paid,  or  the  portion  L  J 
thereof  due  from  each  of  the  consignors  with  interest,  and  a  pro- 
portion of  the  expenses  of  the  suit  at  Port-au-Prince. 

On  this  case  which  was  agreed  to  be  considered  as  a  special 
verdict,  the  District  Court  rendered  judgment  for  the  plaintiffs, 
and  the  defendants  took  a  writ  of  error. 

Lowber,  for  the  plaintiffs  in  error,  contended,  1.  That  if  an 
agent  sell  on  credit,  even  within  his  authority,  it  is  his  duty, 
within  a  reasonable  time,  to  inform  his  principal  of  the  names  of 
the  purciiasers,  and  the  terms  of  sale. 

2.  That  if  the  agent  treat  the  security  as  his  own,  he  makes 
himself  the  debtor  to  his  principal ;  and  if  he  has  not  paid  he  is 
liable  to  pay  ;  if  he  has  paid,  he  cannot  recover  back  what  he  has 
paid.  In  support  of  these  positions,  he  cited  Paley  on  Agency, 
27;  1  Campb.  411 ;  2  Campb.  546,  (note) ;  Id.  291;  1  Eng. 
Common  Law  Pep.  250 ;  1  Wash.  C.  C.  Rep.  394,  445 ;  Oak- 
ley V.  Renshaw,  4  Cowen,  250. 

Dunlap,  for  the  defendants  in  error  insisted,  1.  That  the 
principal  was  bound  to  repay  his  agent  any  losses  which  may 
have  happened,  not  through  his  fault. 

2.  That  the  agent,  though  clothed  with  comprehensive  powers, 
is  not  liable  for  losses,  unless  by  his  own  fault.  He  cited  Liver- 
more  on  Factors,  11,  18,  73,  75,  463;  Ramsay  V.Gardner, 
11  Johns.  439  ;  D'Arcey  v.  Lysle,  5  Binn.  441 ;  3  Caines'  Rep. 
238  ;  1  Marsh,  on  Ins.  292 ;  Andrews  v.  Robinson,  3  Campb. 
198  ;  Wilkinson  v.  Winn,  4  Campb.  177. 

The  opinion  of  the  court  was  delivered  by 

Rogers,  J. — The  payment  of  the  balance  of  an  account  by  a 
factor  or  commission  merchant,  to  his  principal,  after  the  sales 
made,  and  for  the  purpose  of  closing  the  accounts  between  the 
parties,  is  an  assumption  of  outstanding  debts.  And  this  is  the 
principle  of  the  case  of  Oakley  v.  Renshaw,  4  Coav.  205. 

After  the  final  settlement,  the  principal  has  the  best  grounds 
to  suppose  that  the  agent  has  been  actually  paid,  or  that  he  is 

141 


12^  SUPREME  COURT  [Philadelphui, 

[Elliott  and  others,  Executors  of  Field,  v.  Walker  and  another,  Administra- 
tors of  Wilson.] 

content  to  take  upon  himself  the  responsibility  of  the  purchaser. 
Where  there  is  nothing  in  the  transaction  to  rebut  the  inference, 
this  is  undoubtedly  a  fair  presumption.  To  subject  the  princi- 
pal, at  any  distance  of  fime,  when  he  has  reason  to  suppose  the 
business  finally  closed,  would  be  a  deception  u})on  him,  attended 
with  danger  and  great  inconvenience,  and  particularly  in  the 
case  of  a  foreign  creditor,  who  has  no  means  of  knoAving  the 
debtors,  or  guarding  against  imposition.  In  the  absence  of 
fraud  or  mistake,  it  would  be  unsafe  to  unravel  such  a  transac- 
tion ;  for  after  final  settlement,  the  principal  gives  himself  no 
r*l  9Q1  ^^'^ther  concern,  as  he  has  a  right  to  suppose  *that  the 
■-  J  money  has  been  received,  or  that  the  factor  agrees  to  take 
upon  himself  the  risk  of  the  solvency  of  the  purchaser.  The  diffi- 
culty in  this  case,  arises  not  from  any  uncertainty  in  law,  but  in  de- 
termining the  nature  of  the  settlement,  or  in  other  words,  whether 
this  was  a  final  settlement,  and  so  understood  by  the  parties.  In 
the  letter  of  the  20th  of  April,  Wilson  informs  tiie  shippers, 
that  he  had  sold  part  of  the  consignment  on  a  short  credit,  but 
neither  states  the  names  of  the  purchaser  nor  mentions  the 
term  of  credit,  and  we  are  left  to  conjecture  whether  short  credit 
means  sixty  or  ninety  days,  six  months  or  a  year.  In  the  let- 
ters of  the  26th  of  April  and  5th  of  May,  he  advises  Field,  that 
he  had  not  sold  his  nankeens,  but  informs  Cheever  &  Fales, 
that  he  had  been  more  fortunate  with  theirs,  as  the  remainder 
of  them  had  been  disposed  of  at  a  short  credit ;  but  in  the  letter 
of  the  13th  of  June,  he  says,  he  will  ship  the  net  proceeds  of 
sales  in  coffee,  but  that  not  having  received  the  Government  ex- 
penses, he  caimot  exactly  state  the  sum,  which  by  the  next  op- 
portunity to  America,  will  be  done,  enclosing  the  bill  of  lading 
at  the  same  time.  On  the  19th  of  June,  the  accounts  of  sales 
and  bills  of  lading  of  the  coffee  were  duly  rendered  to  the  ship- 
pers, in  which  I  remark  this  difference.  In  the  account  of  sales 
of  Field's  shipment,  the  names  of  the  purchasers  are  not  given, 
but  it  is  expressly  stated,  in  the  usual  mercantile  manner,  errors, 
Omissions,  and  outstanding  debts  excepted.  In  the  account  of 
sales  rendered  to  Cheever  &  Fales,  the  names  of  the  purchas- 
ers are  given,  and  it  is  stated,  errors  and  omissions  excepted. 
In  the  absence  of  all  proof  to  the  contrar}',  the  inference  is, 
that  at  the  time  the  balance  was  paid,  it  was  done  with  those 
accounts  before  them,  and  with  express  reference  to  them. 
There  is  then,  no  room  for  presumption,  that  the  shippers  sup- 
posed the  debts  had  been  paid  ;  for  it  appeared  in  the  accounts 
rendered  that  they  had  not.  Nor  can  it  be  reasonably  supposed, 
that  Wilson  intended  to  take  upon  himself  the  risk  of  their  col- 
lection ;  for  it  is  not  pretended,  he  charged,  or  was  allowed  a 
142 


Jan.  15,  1829.]      OF   PENNSYLVANIA.  129 

[Elliott  and  others,  Executors  of  Field,  v.  Walker  and  another.  Administra- 
tors of  Wilson.] 

del  credere  commission.  If  the  shippers  were  aware  that  thy 
debts  were  outstanding,  what  injury  had  they  sustained  ?  Thee 
were  not  killed  into  a  false  security,  nor  were  they  in  any  way 
deceived  and  why  should  they  wish  to  throw  the  loss  on  an 
agent,  who,  it  is  acknowledged,  acted  in  conformity  to  his  in- 
structions, and  with  the  strictest  regard  to  the  interest  of  his 
employers.  When  a  principal  has  reason  to  suppose  that  the 
business  is  finally  closed,  and  a  payment  of  the  balance  is  made 
for  that  purpose,  then  he  should  be  protected ;  but  I  cannot 
agree,  that  the  mere  payment  of  the  balance  of  the  account, 
without  any  accompanying  circumstances,  can  have  that  eifect. 
The  case  states,  that  money  to  the  amount  of  seventeen  thou- 
sand five  hundred  dollars,  was  taken  up  by  Wilson,  from  Messrs. 
David  Corry  &  Co.,  with  a  view  of  closing  the  sales  at  Port- 
au-Prince  ;  but  it  is  no  where  found,  that  the  balance  of  the 
money  was  paid  with  the  intention  of  closing  the  account  r^.,  .-,^-1 
*between  the  principal  and  agent,  which  is  the  turning  L  '  -^ 
point  in  Oakley  v.  Renshaw.  It  has  been  truly  said,  by  the  counsel 
for  the  plaintiffs  in  error,  that  if  an  agent  sell  on  credit  it  is  his 
duty,  within  a  reasonable  time,  to  inform  his  ])rincipal  of  the 
names  of  the  purchasers,  and  the  terms  of  sale.  In  such  a  case 
the  agent  would  be  answerable  to  his  principal,  in  damages  for 
any  loss  which  may  have  been  sustained  by  reason  of  his  omis- 
sion to  give  the  necessary  information.  It  does  not,  however, 
follow,  that  for  this  neglect,  he  shall  at  all  events  be  made 
responsible  for  the  solvency  of  the  purchasers.  The  cases  relied 
upon  were  Edgar  v.  Bumstead,  1  Campb.  411  ;  Bousfield  v. 
Creswell,  2  Campb.  545;  Simpson  v.  Swan,  3  Campb.  291,  and 
Wilkinson,  assignee  of  Gwynne,  v.  Clay,  4  Campb.  170,  are 
cases  of  insurance  brokers,  who  enter  into  bonds,  and  by  statute 
are  bound  to  make  known,  upon  every  contract  or  bargain,  the 
names  of  their  principals.  1  Liv.  on  Agency,  73.  They  de- 
pend upon  the  well  known  course  of  dealing  between  the  insu- 
rance broker,  the  merchant,  and  underwriter,  and  do  not  touch 
on  the  common  course  of  trade,  or  agencies  which  have  no  such 
usages. 

There  is  no  doubt  an  obligation  on  the  principal,  (which  the 
civilians  call  obligatio  mcmdato  contraria,)  to  repay  his  agent 
such  sums  of  money,  as  the  latter  has  necessarily  expended  in 
the  execution  of  his  commission;  and  to  indemnify  him  for  losses 
sustained  by  reason  of  his  employment.  To  give  rise  to  this 
obligation,  it  is  necessary  that  the  agent  should  have  sustained 
some  loss,  on  account  of  the  agency,  ex  causa  mandati,  and  that 
the  loss  should  not  have  been  caused  by  the  agent's  fiiult. 
These  principles  are  recognized  to  the  fullest  extent  in  D'Arccy 

143 


130  SUPREME  COURT  [PMladelphia, 

[Elliott  and  others,  Executors  of  Field,  f.  "Walker  and  another,  Adminbtra- 
tors  of  Wilson.] 

V.  Lyle,  5  Binn.  441.  The  statement  of  the  case  clearly  shows 
that  the  loss  has  been  sustained  on  account  of  the  agency,  with- 
out any  blame  imputable  to  the  agent,  but  from  one  of  those 
accidents  which  the  utmost  vigilance  of  the  plaintiff  could  not 
have  prevented. 

Judgment  affirmed. 

Cited  by  Counsel,  1  M.  140 ;  7  Barr,  285 ;  6  W.  &  S.  45. 
Commented  on  by  the  Court,  6  Wh.  23;  6  W.  &  S.  412. 


[*131]  *[Philadei.phia,  Janttaby  15,  1829.] 

Kershaw  against  Supplee. 

rN  ERROR. 

Lease  for  fifteen  years,  reciting  the  intention  of  the  lessees  to  erect  a  manu- 
factory of  cotton,  &c.  It  was  covenanted  tliat  if  the  lessor,  his  heirs,  or 
assigns,  should  pay  to  the  lessees  the  value  of  sucli  buildings  as  they  should 
erect,  first  giving  three  years'  notice  of  the  intention  so  to  do,  the  lease  should 
expire  at  the  end  of  the  fifteen  years,  otherwise  to  continue  from  three  years 
to  three  years,  until  such  notice  and  payment  should  be  made,  at  the  same 
rent.  The  lessor,  for  himself  and  his  heirs,  covenanted,  at  his  and  their  cost, 
to  keep  the  dam,  race,  &c.,  in  good  repair.  The  value  of  the  buildings  was 
not  paid  to  the  lessees.  The  lease  was  assigned,  and  the  lessor  having  died, 
after  having  devised  the  reversion  of  the  premises  and  other  lands  to  his  five 
children,  the  assignee  of  the  lease  became,  by  different  conveyances,  the  owner 
of  three-fifths  of  the  reversion,  in  fee.  The  dam  and  race  being  out  of  repair, 
and  the  executor  of  the  lessor  not  having,  after  notice,  repaired  the  same,  the 
assignee  expended  five  hundred  dollars  in  the  necessary  repairs,  and  brought 
an  action  against  the  executor  of  the  lessor,  to  reimburse  liimself.  It  was 
agreed  that  the  breach  took  place  after  the  death  of  the  lessor,  and  while  the 
plaintiff  was  assignee  of  the  lease,  and  owner  of  part  of  the  reversion.  Held, 
that  the  action  could  not  be  maintained. 

It  seems,  that  an  action  might  be  maintained  against  the  two  devisees  who 
did  not  comply  with  the  covenant  to  repair. 

This  case  came  before  the  court  on  a  writ  of  error  to  the  Dis- 
trict Court  for  the  city  and  county  of  Philadelphia,  in  which 
judgment  was  rendered  for  the  defendant,  upon  a  case  stated  in 
the  nature  of  a  special  verdict. 

The  substance  of  the  case  is  stated  in  the  opinion  of  the 
court,  which,  after  argument  by  Rawle,  for  the  plaintiff  in 
error,  who  cited  2  Selw.  N.  P.  95,  and  J.  R.  Ingersoll,  contra, 
who  cited  Co.  Litt.  223,  a,  sect.  361 ;  Id.  338",  b ;  Godb.  2  ; 
Moore,  54 ;  6  Bro.  Par.  Ca.  356 ;  5  Rep.  24,  a ;  Willes,  585;  Sir 
W.  Jones's  Rep.  245 ;  Cro.  Ca.  221, — was  delivered  by 

Huston,  J. — From  the  case,  which  I  could  wish  was  in  some 
respects  more  fully  stated,  it  appears  that  John  Supplee,  by  in- 
144 


Jan.  15,  1829.]     OF  PENNSYLVANIA.  131 

[Kershaw  v.  Supplee.] 

denture  dated  the  30th  of  July,  1804,  demised  to  William 
Mitchell  and  John  G.  Baxter,  their  executors,  and  administrators 
and  assigns,  certain  premises  in  Blockley  township,  for  the  term  of 
fifteen  years,  reciting  the  intention  of  the  lessees  to  erect  thereon 
certain  mills  for  carrying  on  a  manufactory  of  cotton,  &c. ; 
and  it  was  covenanted  that  if  the  lessor,  his  heirs  or  assigns 
shall  pay  to  the  lessees  the  value  of  such  buildings  as  they  shall 
erect,  (which  value  is  to  be  ascertained  in  a  mode  prescribed,) 
first  giving  three  years'  notice  of  the  intention  so  to  do,  the 
lease  shall  expire  at  the  end  of  fifteen  years,  otherwise  to  con- 
tinue from  three  years  to  three  years  until  such  notice  and  pay- 
ment, at  the  same  rent.  "And  the  said  John  Supplee  for  him- 
self and  his  heirs,  doth  hereby  covenant  and  agree,  at  his  and 
*their  own  cost,  to  keep  the  dam,  race,  and  other  reser-  r^ioo-i 
voirs  of  water  necessary  for  the  supply  of  the  mills,  in  •-  "'-' 
good  repair." 

The  value  of  the  buildings  has  not  been  paid  to  the  lessees  — 
Kershaw,  the  plaintiff,  is  assignee  of  the  lessees ;  and  John 
Supplee  having  died  and  devised  the  reversion  of  this  and  other 
lands  after  the  death  of  his  wife,  who  has  since  died,  to  his  five 
children — Kershaw  has,  by  different  conveyances,  become  the 
owner  of  three-fifths  of  the  reversion,  in  fee. 

The  dam  and  race  being  out  of  repair,  and  the  executor  of 
John  Supplee  not  having,  after  notice,  repaired  the  same,  Ker- 
shaw, the  plaintiff,  has  expended  five  hundred  dollars  in  the 
necessary  repairs  thereof,  and  brought  this  action  to  obtain  re- 
imbursement. 

John  Supplee  died  in  1804.  His  personal  estate  has  been 
fully  administered. 

It  is  agreed  that  the  breach  took  place  after  the  death  of  the 
lessor,  and  during  the  time  when  the  plaintiff  was  assignee  of 
the  lessees,  and  part  owner  of  the  reversion. 

The  above  facts  are  taken  from  the  case,  and  are  all  the  facts 
contained  in  it.  From  the  lease  and  will  referred  to  and  which 
may  be  considered  part  of  it,  we  are  to  understand  that  John 
Supplee,  before  the  lease,  owned  a  tract  of  land  and  mill — that 
the  lessees  were  to  have  but  a  small  part  of  that  tract,  and  were 
to  continue  the  race  already  made  to  Supplee's  mill,  past  his 
mill  to  the  building  they  were  to  erect.  The  dam,  and  that  part 
of  the  race  from  the  dam  to  Supplee's  mill,  were  not  on  the 
premises  demised,  and  it  is  not  stated  whether  Kershaw  is  the 
owner  of  three-fifths  of  the  tract  on  which  the  dam  is,  or  only 
of  three-fifths  of  the  part  demised — perhaps  this  may  be  imma- 
terial. 

Two  questions  are  submitted :  1.  Whether  the  plaintiff  can 
recover  on  the  covenant  in  this  lease  ? 

VOL.  I.— 10  145 


132  SUPREME  COURT  [Philadelphia, 

[Kershaw  v.  Supplee.J 

2.  In  what  manner  execution  must  be  issued ;  that  is, 
wliether  the  parts  purchasecl,  and  now  lield  by  James  Kersliaw, 
are  liable? 

There  are  several  objections  to  the  plaintiff's  recovery.  By 
the  purchase  of  the  fee  simple  of  three-fifths,  the  term  for  years 
for  those  three-fifths  is  extinguished ;  for  nothing  is  better 
settled  than  that  where  a  .term  for  years,  or  life,  exists  in  a  per- 
son in  his  own  right,  and  he  subsequently  acquires  the  fee  in  his 
own  right,  the  former  is  lost  and  merged  in  the  latter.  Where 
the  terra  and  the  fee  unite  in  the  same  person,  but  in  different 
rights  it  is  otherwise ;  so  if  the  term  is  created  for  a  special 
purpose  not  yet  accomplished,  and  to  be  kept  separate  until 
that  object  is  effected,  equity  considers  them  distinct ;  but  if 
they  had  not  entirely  united,  or  rather  if  the  term  was  not 
merged  in  the  fee  in  this  case,  yet  as  Kershaw,  as  owner  of  the 
fee,  is  liable  to  keep  up  the  dam  and  reservoirs,  for  himself  or 
tenant,  and  as  he  cannot  sue  himself  even  joined  with  others, 
his  situation  is  one  of  some  difficulty,  where  we  have  no  Court 
of  Chancery. 

He  has  brought  suit,  not  against  the  two  devisees  of  John 
r*  1  '^'^1  ^uppls^  *from  whom  he  has  not  purchased,  and  who  have 
L  '  -I  broken  the  covenant,  but  against  the  executor  of  Jolin 
Supplee.  I  admit  that  generally  the  executor  is  liable  to  any  ac- 
tion of  covenant,  wherever  his  testator  was  liable,  if  it  be  not  de- 
termined by  the  death  of  the  testator,  or  as  some  books  say,  if 
it  be  not  personal  to  the  testator,  and  to  be  performed  by  him 
alone,  or  if  the  breach  be  not  in  the  time  of  the  testator.  (See 
2  Bac.  Ab.  Covenant,  F.,  and  cases  there  cited,  and  3  Com.  Dig. 
Cov.  C  1 ;)  or,  if  it  be  not  such  a  covenant  as  is  to  be  performed 
by  the  person  of  the  testator,  and  which  the  executor  c<annot 
perform.     Cro.  Eliz.  552,  553. 

The  modern  decisions  put  it  on  more  liberal,  and  I  think, 
more  satisfactory  ground  ;  viz.,  the  true  meaning  of  the  contract. 
To  be  sure  a  man  may  covenant  that  an  act  shall  be  performed 
by  another,  and  if  it  appear  that  he  did  so,  and  was  understood 
at  the  time  so  to  do,  and  this  appears  by  the  instrument,  he  is 
bound,  and  so  are  his  executors,  though  he  never  derived  any 
benefit,  and  though  all  the  benefit  has  accrued  to  another.  2 
Burr.  1190.  The  covenant  here  is,  "The  said  John  Supplee, 
for  himself  and  his  heirs,  doth  hereby  covenant  and  agree,  at 
his  and  their  own  cost,  to  keep  the  dam,  <fec.,  in  re])air."  This 
covenant  runs  with  the  land  and  binds  the  heirs,  and  the  de- 
visees as  assignees,  and  the  assignees,  though  not  named.  Did 
he  intend  to  bind  his  executors,  that  his  heirs  or  assignees  should 
keep  up  the  dam,  or  did  he  mean  to  bind  his  hoirs  or  assigns  to 
keep  it  uj),  and  to  give  an  action  against  them  if  they  neglected 
146 


/aw.  15, 1829.]      OF  PENNSYLVANIA.  133 

[Kershaw  v.  Supplee.] 

or  refused  so  to  do  ?  He  could  enter  into  either  of  the  cove- 
nants :  the  first  would  bind  his  personal  representatives,  the 
latter  the  owner  of  the  fee,  and  the. words  seem  to  import  the 
latter  covenant.  His  executors  cannot  enter  on  the  land  to 
make  the  repairs  without  being  trespassers.  The  covenant  must 
be  performed  by  the  owner  of  the  laud ;  by  John  Supplee,  while 
owner,  by  his  heirs  or  assignees  after  his  death,  or  after  a  sale 
by  him.  It  is  better  for  the  tenant  that  this  construction  be 
put  on  it.  John  Supplee's  executors,  and  John  Supplee's  estate 
may  have  no  existence  in  a  few  years  ;  but  the  covenant  running 
with  the  land  and  binding  whoever  becomes  owners,  must  give 
security  to  the  tenant  for  ever.  If  it  is  said  both  may  be  bound, 
I  admit  it ;  and  if  the  fair  import  of  the  words  and  spirit  of  the 
contract  appeared  to  me  to  bind  both,  I  would  say  they  are 
bound.  I  think  the  executors  are  not  liable  to  this  action,  be- 
cause neither  the  words  nor  the  intention  seem  to  include  them  ; 
because  they  cannot  comply  with  this  covenant ;  they  would  be 
trespassers  by  going  on  the  land  and  digging  or  building.  If 
liable  it  is  for  what  has  occurred  in  their  own  time ;  for  not  per- 
forming a  covenant  which  they  could  not  perform,  and  because 
the  effect  of  a  judgment  would  be  that  the  plaintiff  must  take 
an  execution  against  his  own  lands,  for  a  judgment  against 
the  executors  would  bind  all,  and  might  be  levied  on  any  lands 
which  belonged  to  John  Supplee,  at  his  death.  But  it  is  said, 
though  the  judgment  was  for  the  whole  five  hundred  dollars,  three- 
fifths  would  be  struck  out  of  the  *execution  or  marked  not  p^, .-.  .-i 
to  be  collected.  But  more  must  be  done ;  it  must  issue  L  '  J 
against  the  two-fifths  still  belonging  to  the  two  children  of  Sup- 
plee: in  other  w^ords,  a  general  judgment  against  the  estate  of 
Supplee,  must  be  collected  by  an  execution  on  the  shares  of  two 
out  of  five  of  his  devisees.  John  Supplee  had,  it  is  stated,  other 
lands,  and  the  execution,  I  admit,  could  be  levied  on  any  one  tract, 
though  that  tract  belonged  entirely  to  one  devisee :  but  I  deny 
that  wliere  land  is  undivided  among  heirs  or  devisees,  an  execu- 
tion on  a  general  judgment  against  the  father  could  be  levied 
on  the  undivided  share  of  any  one  child. 

Three  of  the  heirs  have  sold  to  Kershaw ;  this  judgment  may 
be  levied  on  other  lands  devised  to  them  by  their  father,  and 
those  lands  sold  ;  but  those  three  have  broken  no  covenant,  have 
been  in  no  default,  their  father  broke  no  covenant,  his  executors 
have  broken  none ;  they  arc  then  liable  for  a  breach  of  which 
they  are  not  guilty.  It  will  not  do  to  say  they  may  bring  suit 
and  get  compensation  from  the  two  who  have  broken  the  cove- 
nant ;  our  law  does  not  punish  the  innocent  for  the  acts  of  the 
guiltj^,  unless  where  they  or  their  ancestor  have  made  them 
responsible  for  those  acts,  which  is  not  the  case  on  tliis  ugree- 

147 


134  SUPREME  COURT  [Philadelphia, 

[Kershaw  tf.  Snpplee.] 

ment,  and  it  is  not  the  least  objection  to  this  action  that  the 
plaintiff  is,  in  fact,  carrying  on  a  suit  against  himself:  his  judg- 
ment, and  his  execution  must  be,  in  substance  against  himself; 
for  before  he  can  take  an  execution  for  the  shares  of  the  two 
devisees,  he  must  get  a  judgment  against  the  two  devisees. 

I  have  no  doubt  of  the  power  of  this  court  to  interpose  its 
equitable  powers  in  an  action  of  covenant  as  much  as  in  any- 
other  form  of  action.  We  have  an  early  and  strong  case  of  this 
kind.  1  Dall.  210, — where,  in  covenant  for  rent,  the  court 
held  the  tenant  not  liable,  because  he  did  not  and  could  not 
enjoy  the  property.  But  equitable  power  is  exercised,  when 
the  party  sued  in  justice  and  conscience  ought  to  pay ;  not  where 
the  defendant  has  been  in  no  default,  has  violated  no  contract : 
in  such  a  case,  if  he  can  escape  at  law,  equity  does  not  hold  him 
liable.  If  a  suit  shall  be  brought  against  the  two  devisees,  who 
have  not  complied  with  a  covenant  which  binds  them,  I  should 
not  be  willing  to  permit  them  to  escape  because  the  form  of  ac- 
tion, or  the  nature  of  their  interest,  would  compel  the  injured 
party  to  apply  to  chancery,  where  there  is  a  Court  of  Chancery. 

Judgment  affirmed. 

ated  by  Coansel,  2  Penn.  R.  477 ;  8  W.  &  S.  431 ;  11  Wright,  286. 


[*135]  *[PHrLADELPHiA,  Jautjaky  24,  1829.] 

Davis  against  Shoemaker. 

IN   ERROR. 

The  act  of  March  27,  1713,  for  the  limitation  of  actions,  is  not  a  bar  to  the 
recovery  of  rent  reserved  by  indenture. 

In  an  action  of  debt  for  rent  reserved  by  indenture,  the  plaintiff  may  state  in 
his  declaration  the  substance  of  the  demise,  and  is  not  bound  to  declare  upon 
the  deed ;  and,  if  to  such  a  declaration  the  defendant  pleads  nil  habuit  in  tene- 
mentis,  actio  non  accrevit  infra  sex  annos,  or  any  plea  which  is  prima  facie  a  good 

fdea,  no  estoppel  appearing  on  the  record,  the  plaintiff  may  rei)ly,  that  the 
ease  was  by  indenture,  and  such  a  replication  will  not  be  a  departure. 

Under  the  plea  of  nil  debet  to  a  declaration  stating  a  demise  generally,  the 
defendant  may  give  the  statute  of  limitations  in  evidence.     {Semble.) 

This  was  a  writ  of  error  to  the  District  Court  for  the  city  and 
county  of  Philadelphia,  where  judgment  had  been  entered  for  the 
defendant  in  error,  upon  the  following  declaration  and  subse- 
quent pleadings : — 

James  Davis,  late  of  the  township  of  Moyamensing,  in  the 

county  aforesaid,  blacksmith,  was  summoned  to  answer  David 

Shoemaker,  of  a  plea  that  he  render  unto  him  the  sum  of  two 

hundred  and  ten  dollars,  which  he  owes  to  and  unjustly  detains 

148 


Jan.  15,  1829.]      OF  PENNSYLVANIA.  135 

[Davis  t).  Shoemaker.] 

from  him.  And  whereupon  the  said  David,  by  Henry  Shoe- 
maker, his  attorney,  says,  that  whereas  the  said  David,  hereto- 
fore, to  wit,  on  the  third  day  of  July,  in  the  year  one  thousand 
eight  hundred  and  ten,  at  tlie  county  aforesaid,  demised  to  the 
said  James  a  certain  lot  or  pi^ee  of  land,  with  the  appurtenances, 
situate  in  the  township  and  county  aforesaid,  to  have  and  to  hold 
the  same  to  the  said  James  for  a  certain  term  of  years,  to 
wit,  for  and  during,  and  until  the  full  end  and  term  of  seven 
years,  to  commence  from  the  first  day  of  January  tlieu  next  en- 
suing, and  fully  to  be  complete  and  ended  :  Yielding  and  paying, 
therSfor,  during  the  said  term,  to  the  said  plaintiff  the  yearly 
rent  of  thirty  dollars ;  that  is  to  say,  on  the  first  day  of  January, 
in  the  year  one  thousand  eight  hundred  and  twelve,  thirty  dol- 
lars, and  on  the  first  day  of  January,  yearly,  in  each  succeeding 
year,  thirty  dollars  for  and  during  the  said  term.  By  virtue  of 
the  said  demise,  the  said  defendant  entered  into  the  said  de- 
mised premises,  with  the  appurtenances,  and  was  possessed  there- 
of henceforth  until  the  first  day  of  January,  in  the  year  one 
thousand  eight  hundred  and  eighteen,  when  a  large  sum  of  money, 
to  wit,  the  sum  of  two  hundred  and  ten  dollars,  the  rent  aforesaid 
for  the  space  of  seven  years  then  elapsed  became  and  was  due 
and  payable  from  the  said  defendant  to  the  said  plaintiff,  and 
still  is  in  arrear  and  unpaid  to  the  said  plaintiff,  to  wit,  at,  &c., 
aforesaid.  AVhereby  an  action  hath  accrued  to  the  said  plaintiff, 
to  demand  and  have  from  the  said  defendant  the  sum  of  two 
hundred  and  ten  dollars. 

*And  whereas  also  the  said  James  Davis  aflerwards,  r*iop-i 
to  wit,  on,  &c.  at,  &c.  aforesaid,  was  indebted  to  the  said  ^  -' 
David  Shoemaker  in  the  sum  of  two  hundred  and  ten  dollars,  for 
the  use  and  occupation  of  a  certain  lot  or  piece  of  land,  with  the  ap- 
purtenances of  the  said  plaintiff,  situate,  &c.,  by  the  said  defendant, 
and  at  his  special  instance  and  request,  and  by  the  sufferance  and 
permission  of  the  said  plaintiff  for  a  long  space  of  time  before  then 
elapsed  had,  held,  used,  occupied  and  enjoyed,  and  to  be  paid  by 
the  defendant  to  the  said  plaintiff,  when  the  said  defendant 
should  be  thereunto  afterwards  requested.  Yet  the  said  defend- 
ant (although  often  requested  so  to  do,)  hath  not  as  yet  paid 
the  said  sum  of  two  hundred  and  ten  dollars  above  demanded, 
or  any  part  thereof,  to  the  said  plaintiff.  But  he  to  do  this 
hath  hitherto  wholly  refused,  and  still  doth  refuse :  To  the 
damage  of  the  said  plaintiff  of  one  hundred  dollars,  and  there- 
fore he  brings  his  suit,  &c. 

In  the  District  Court  for  the  city  and  county  of  Philadelphiaf 
March  Term,  1825,  No.  254. 

149 


136  SUPllEME  COURT  {PhUaddphia, 

[Davis  V.  Shoemaker.] 

James  Davis  ^  And  the  said  James  Davis,  by  Edward 
ats.  VD.  Ingraham,  his  attorney,  comes  and  de- 

David  Slioemaker.  j  fends  the  wrong  and  injury,  when,  &c.  and 
says  that  he  does  not  owe  the  said  sum  of  money  above  demanded, 
or  any  part  thereof,  in  manner  and  form  as  the  said  David  Shoe- 
maker hath  above  thereof  complained  against  him,  and  of  this 
he  the  said  James  puts  himself  upon  the  country,  &c. 

And,  for  a  further  plea  in  this  behalf,  the  said  James  Davis, 
by  leave  of  the  court  here  for  this  purpose  first  had  and  obtained, 
according  to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided, says,  that  the  said  David  Shoemaker  ought  not  to  have 
or  maintain  his  aforesaid  action  thereof  against  him,  because  he 
says,  that  the  said  several  supposed  causes  of  action  in  the  said 
declaration  mentioned  did  not,  nor  did  any  of  them,  accrue  to 
the  said  David  Shoemaker  at  any  time  within  six  years  next 
before  the  commencement  of  this  suit,  in  manner  and  form  as  the 
said  David  Shoemaker  hath  above  thereof  complained  against 
him,  the  said  James  Davis.  And  this  he  the  said  James  Davis 
is  ready  to  verify ;  wherefore  he  prays  judgment,  if  the  said 
David  Shoemaker  ought  to  have  or  maintain  his  aforesaid  action 
thereof  against  him,  &c. 

In  the  District  Court  for  the  city  and  county  of  Philadelphia, 
No.  254,  March  Term,  1825. 

Shoemaker  ^      And  the  said  David  Shoemaker,  as  to  the  plea 
V.  y  of  the  said  James  Davis  by  him  first  above  pleaded, 

Davis,  j  and  whereof  he  hath  put  himself  upon  the  country, 
doth  the  like. 

r*1  '^71  *And  the  said  David  Shoemaker,  as  to  the  plea  of  the 
■-  -'  said  James  Davis,  by  hira  secondly  above  pleaded,  ac- 
cording to  the  form  of  the  act  of  the  general  assembly  of  this 
commonwealth,  passed  the  twenty-first  day  of  March,  in  the 
year  one  thousand  eight  hundred  and  six,  for  the  purpose,  enti- 
tled, "An  act  to  regulate  arbitrations  and  proceedings  in  courts 
of  justice,"  saith,  that  the  said  James  Davis  ought  not  to  be  ad- 
mitted or  received  to  plead  the  said  plea  by  him  secondly  above 
pleaded,  as  to  so  much  thereof  wherein  he  alleges,  "  that  the 
said  several  supposed  causes  of  action  in  the  said  declaration 
mentioned  did  not,  nor  did  any  of  them,  accrue  to  the  said 
David  Shoemaker,  at  any  time  within  six  years  next  before  the 
commencement  of  this  suit,"  because  he  says,  that  the  said  James 
Davis  contracted  in  writing  with  him  for  the  possession  of  the 
said  lot  of  ground,  for  a  term  of  years,  as  aforesaid,  dated  the 
third  day  of  July,  in  the  year  one  thousand  eight  hundred  and 
ten,  the  said  contract  being  signed  by  and  sealed  with  the  seal 
150 


Jan.  15,  1829.]      OF  PENNSYLVANIA.  137 

[Davis  V.  Shoemaker.] 

of  the  said  James  Davis,  and  now  here  shown  to  the  court ; 
whereby  it  appears,  that  the  said  James  Davis  is  justly  indebted 
to  the  said  David  Shoemaker  in  the  said  several  sums  of  money 
in  the  said  declaration  mentioned,  and  this  the  said  David  Shoe- 
maker is  ready  to  verify ;  wherefore  he  prays  judgment  if  the 
said  James  Davis  ought  to  be  admitted  or  received  against  his 
own  acknowledgment  by  his  deed  aforesaid  to  plead  the  plea  by 
him  lastly  above  pleaded  in  this  suit ;  "  that  the  said  several 
supposed  causes  of  action  in  the  said  declaration  mentioned  did 
not,  nor  did  any  of  them,  accrue  to  the  said  David  Shoemaker 
at  any  time  within  six  years  before  the  commencement  of  this 
suit,"  &c. 

In  the  District  Court  for  the  city  and  county  of  Philadelphia, 
March  Term,  1825,  No.  254. 

David  Shoemaker  ^      And  the  said  James  Davis  saith,  that  the 
V.  Vsaid  replication  of  the   said  David  Shoe- 

James  Davis,  j  maker  to  the  said  second  plea  of  him  the 
said  James  Davis,  and  the  matters  therein  contained,  in  manner 
and  form  as  the  same  are  above  pleaded  and  set  forth,  are  not 
sufficient  in  law  for  the  said  David  Shoemaker  to  have  or  main- 
tain his  aforesaid  action  against  him,  the  said  James  Davis,  and 
that  he,  the  said  James  Davis,  is  not  bound  by  the  law  of  the 
land  to  answer  the  same,  and  this  he,  the  said  James  Davis,  is 
ready  to  verify  :  Wherefore,  for  want  of  a  sufficient  replication 
in  this  behalf,  he,  the  said  James  Davis,  prays  judgment  if  the 
said  David  Shoemaker  ought  to  have  or  maintain  his  aforesaid 
action  against  him,  &c. 

The  errors  assigned  were,  1.  That  the  act  of  March  27th, 
1713,  "  for  limitation  of  actions,"  was  a  bar  to  the  action  of  the 
defendant  in  error.  Shoemaker. 

*2.  That  the  court  below  should  have  given  judgment  r^,  ^vj.-. 
in  favour  of  the  said  plaintiff  in  error,  because  the  rep-  ■-  ^ 
lication  of  the  said  David  Shoemaker  to  the  second  plea  of  tlie 
said  James  Davis  is  a  departure  from  the  case  made  by  the  de- 
claration of  the  said  David  Shoemaker. 

Ingraham,  for  the  plaintiff  in  error. — First,  as  to  the  statute 
of  limitations.  The  language  of  the  act  of  assembly  is  not  the 
same  as  that  of  the  English  statute,  and  a  different  construction 
must  be  the  consequence.  The  words,  "  all  actions  of  debt  for 
arrearages  of  rent,  except  the  proprietaries'  quit  rents,"  can 
only  be  satisfied  by  including  the  present  action.  The  words  of 
the  English  statute  are  simply,  "  all  actions  of  debt  for  arrear- 

151 


138  SUPREME  COURT     -        [PhUaddpkia, 

[Davis  V.  Shoemaker.] 

ages  of  rent,"  (Ruffh.  Stat.  vol.  3,  101 ;)  and  the  judicial  view 
taken  of  them  would  perhaps  include  this  case,  if  the  old  de- 
cision in  Hutton's  Reports,  (Freeman  v.  Stacye,  j)age  109,)  be 
law,  wliicli  is  very  doubtful ;  but  there  can  scarcely  be  a  doubt 
that  those  who  took  the  English  statute  for  their  guide  intended 
to  create  a  difference  by  the  use  of  words,  "  except  the  proprie- 
taries' quit  rents,"  as  it  is  certain  that  the  addition  was  not  ac- 
cidental ;  for  it  appears,  by  a  reference  to  the  Votes  of  Assem- 
bly, (vol.  2,  page  J  24,)  that  the  act  of  assembly  was  prepared 
under  the  direction  of  a  lawyer.  It  is  impossible  not  to  apply, 
in  relation  to  this  alteration  in  the  language  of  an  act  of  assem- 
bly, evidently  copied  from  the  statute  of  James,  the  reasoning 
of  Chief  Justice  Tilghman,  in  Ewing  v.  Tees,  1  Binn.  455,  upon 
the  English  statute  of  frauds  and  our  act  of  assembly  upon  the 
same  subject.  And  this  construction  is  fortified  by  the  fact, 
that  it  was  unnecessary  to  say  a  word  upon  the  proprietaries' 
quit  rents;  for  they  would  have  been  protected  completely  under 
the  decision  in  Hutton,  which  took  place  in  1652,  and  was 
printed  in  1682,  more  than  thirty  years  before  the  act  of  assem- 
bly was  passed.  If  the  additional  words  be  considered  as  merely 
evidence  of  the  intention  of  the  legislature,  they  are  conclusive, 
and  the  clause  will  be  properly  read:  "All  actions  of  debt 
for  arrears  of  rent  shall  be  barred  by  the  statute  of  limitations, 
except  where  such  actions  are  brought  by  the  proprietary  for 
arrearages  of  quit  rent."  It  is  the  more  reasonable  construc- 
tion, because,  after  all,  the  obligation  to  pay  as  founded  upon 
the  occupation  of  the  land  by  the  lessee,  the  indenture  is  mere 
inducement,  and  need  not  be  set  out  in  the  declaration.  And, 
though  the  party  might  recover  in  covenant  upon  the  deed  with- 
out occupation,  he  never  could  in  debt.     1  Saund.  39. 

Second.  As  to  the  pleadings. — Debt  lies  for  use  and  occupa- 
tion, where  the  demise  is  not  under  seal,  1  Chit.  PI.  98,  because 
indebitatus  assumpsit  would  lie.  But  the  count  for  use  and 
occupation  is  not  sustainable  where  there  is  a  demise  by  deed  : 
it  is  meant  to  help  a  doubtful  case,  (2  Chit.  PI.  431,)  which 
this  was  not,  as  Shoemaker  had  the  deed  himself,  and  replied 
that  the  demise  was  by  deed,  to  the  plea  of  the  statute.  This 
r*l  "^91  ^^^^^^  declaration  would  l)e  *sustained  only  by  showing 
l-  '  J  a  parol  demise;  though  the  first  count,  standing  by 
itself,  would  do,  if  the  holding  turned  out  to  be  by  deed.  The 
course  here  would  have  been  for  the  plaintiff,  as  there  was  no 
demurrer  to  the  declaration,  to  have  nonprossed  the  second 
count. 

The  substance  of  this  replication — which  is  very  inartificially 
drawn — is  a  departure  from  the  case  made  by  the  declaration, 
(Marshall's  Argument  in  Trueraan  v.  Hurst,  1  T.  R.  40;)  and 
152 


Jan.  15,  1829.J     OF   PENNSYLVANIA.  139 

[Diavis  V.  Shoemaker.] 

the  very  mischief  produced  by  a  departure  has  occurred  here. 
When  the  plea  meets  the  case  made  by  the  declaration,  the 
plaintiff  shows  another  cause  of  action  hy  his  replication.  It 
abandons  the  first  case  made  to  present  another.  The  Lime- 
kiln Case,  (1  Chit.  PI.  635,)  is  in  point  exactly.  The  replica- 
tion tenders  us  an  issue  upon  a  fact  not  set  forth  in  the  decla- 
ration at  all,  and  perfectly  immaterial,  if  the  argument  on  the 
first  point  be  right. 

Shoemaker,  for  the  defendant  in  error. — This  action  is  debt 
for  rent  in  arrear  reserved  by  indenture,  and  was  brought  to 
recover  of  the  plaintiiF  in  error  seven  years'  rent  for  a  lot  in 
Moyamensing  township.  The  rent  in  this  case  is  due  by  the 
lease ;  Salmon  v.  Smith,  1  Saund.  203,  n.  I  ;  Duppa  v.  Mayo, 
Id.  276,  n,  1  and  2 ;  Eaton  v.  Jaques,  2  Doug.  461 ;  and  au- 
thorities cited  in  that  case.  The  declaration  contains  two  counts ; 
the  first  sets  forth  the  orderly  parts  of  the  lease — the  day  of 
making  it — the  annual  rent  the  tenant  is  to  pay — the  length  of 
time  he  is  to  possess  the  land ; — and  concludes  per  quod  actio 
accrevit,  1  Chitty,  346.  The  second  is  put  in  without  stating 
the  local  situation  of  the  premises,  and  is  therefore  merely 
surplusage,  (1  Chitty,  618,)  and  forms  no  part  of  the  case;  2 
Chitty,  223,  notes  d.  and  p.  In  no  part  of  the  narr.  is  it  stated 
that  the  lease  is  in  writing,  though,  to  entitle  the  plaintiff  in 
error  to  recover,  he  must  prove  it  so  in  evidence.  It  is  the  only 
instance  where  a  deed  may  be  given  in  evidence  in  support  of 
a  count  in  which  it  is  not  mentioned ;  1  Chitty,  348.  Authori- 
ties need  not  be  cited  to  show,  that  at  common  law  leases  were 
valid  without  writing.  Our  act  of  assembly  (Purd.  Dig.  516), 
makes  them  invalid  three  years  after  the  making,  if  they  are  not 
put  in  writing.  Then  the  question  occurs,  as  this  lease  is  for 
more  than  three  years,  whether  the  act  of  assembly  has  altered 
the  manner  of  pleading,  if  the  requisites  of  the  act  have  been 
complied  with.  That  it  has  not,  the  authorities  are  abundant 
to  show.  The  law  is,  tliat  where  a  statute  makes  writing  neces- 
sary to  the  validity  of  a  matter,  when  it  was  not  so  at  the  com- 
mon law,  the  manner  of  pleading  is  not  thereby  altered  ;  it  may 
be  given  in  evidence ;  1  Chittv,  348  ;  Attv  et  al.  v.  Parish  et  al., 
4  Bos.  &  Pull.  104,  109;  Birch  v.  Bellarav,  12  Mod.  540; 
2  Chitty,  223,  note  d  ;  6  Bac.  Ab.  395.  The  pleas  of  the  plain- 
tiff in  error  are  nil  debet,  and  the  statute  of  limitations.  Issue 
is  joined  on  the  first.  The  second  is  a  plea,  because  no  estop- 
pel appeared  on  the  record,  but  the  defendant  in  error  replied 
in  bar  to  *it,  that  the  rent  is  reserved  by  indenture,  r*i<r)-| 
and  prayed  the  judgment  of  the  court  if  the  defendant  L  1 

ought  to  be  admitted  against  his  deed  to  j^lead  that  plea.     The 

153 


140  SUPREME  COURT  [Philadelphia, 

[Davis  V.  Shoemaker.] 

demurrer  to  this  replication  aeknowlalges  the  deed ;  Stephens 
on  PI.  159,  160.  The  defendant  in  error  joins  in  demurrer, 
relying  upon  the  estoppel  now  on  the  record,  and  prays  judg- 
ment of  his  debt  and  damages ;  Veale  v.  Warner,  1  Saund. 
325,  note  4 ;  Speake  v.  Richards,  Hob.  206,  207.  It  is  not 
merely  matter  of  form  to  conclude  an  estoppel  without  relying  on 
it,  for  by  not  doing  so  the  party  may  often  lose  the  advantage 
of  the  estoppel  which  the  law  gives  him.  Now,  the  question 
occurs,  whether  the  defendant  in  error  has  not,  in  his  replica- 
tion to  the  plaintiff  in  error's  plea  of  the  statute  of  limitations 
departed  from  his  case?  What  is  his  case?  It  is  that  the 
plaintiif  in  error  leased  a  lot  of  him  for  seven  years  at  thirty 
dollars  a  year,  and  that  the  whole  rent  is  due.  The  replication 
says  the  lease  is  in  writing,  under  his  hand  and  seal.  Does 
not  the  replication  support  and  fortify  this  case?  How  can  it 
be  said  that  the  defendant  in  error  has  committed  a  departure, 
when  the  replication  supports  and  fortifies  the  declaration?  1 
Chitty,  619,  622;  Richards  v.  Hodges,  2  Saund.  84,  a;  note  1. 
Why  is  not  nil  debet  a  plea  when  the  deed  is  declared  on  in  the 
first  instance  ?  Because  it  is  not  necessary  to  declare  on  it  at 
all ;  and  you  shall  not  deprive  the  party  of  the  advantage  which 
the  law  gives  him ;  Jones  v.  Pope,  1  Saund.  39,  n.  3  ;  1  Chitty, 
477.  The  remaining  question  on  the  record  is,  whether  the 
statute  of  limitations  is  a  bar  to  the  action.  It  is  no  bar,  be- 
cause the  action  is  grounded  on  a  contract  with  specialty  ;  Purd. 
Dig.  530 ;  Freeman  v.  Stacie,  Hutton's  Rep.  1 09 ;  Hodsden  v. 
Harridge,  2  Saund.  66  ;  Richards  v.  Bickley,  13  Serg.  &  Rawle, 
395. 

The  opinion  of  the  court  was  delivered  by 

Gibson,  C.  J. — The  act  of  1713,  is  copied  nearly  word  for 
word  from  the  21  Jac.  1,  c.  16;  and,  although  the  latter  ex- 
tends to  all  actions  of  debt  for  rent,  it  has  been  determined  that 
the  statute  is  a  bar  to  the  recovery  of  rent  reserved  only  on 
leases  by  parol ;  a  lease  by  indenture  being  equal  to  a  specialty ; 
(Hutt.  109,  pi.  2).  The  same  principle  is  admitted  in  Hodsden 
V.  Harridge,  (2  Saund.  66).  And  this  construction  is,  no  doubt, 
in  accordance  with  the  actual  intent  of  the  legislature ;  for  it 
would  have  been  nugatory  to  protect  the  lessee  from  an  action 
of  debt,  and  leave  him  exposed  to  an  action  of  covenant,  clearly 
maintained  on  the  indenture,  to  which  the  statute  does  not  ex- 
tend. 

The  remaining  point  is  equally  simple.  It  is  settled,  that  in 
debt  for  rent,  the  plaintiflP  may  state  the  substance  of  the  de- 
mise without  declaring  on  the  deed ;  and  where  it  is  doubtful 
whether  the  lease  were  by  indenture  or  parol,  it  is  usual  to  dc 
154       • 


/an.  15, 1829.]      OF  PENNSYLVANIA.  140 

[Davis  V.  Shoemaker.] 

SO,  adding  a  count  for  use  and  occupation  by  way  of  further 
caution ;  (2  Cliitty  on  Plead.  223,  note  d).  And  to  such  a  decla- 
ration the  plaintiff  may  plead  nil  ^debet;  or,  as  no  estop-  r^,  ^.  -, 
pel  appears  of  record,  nil  hahuit  in  tenementis,  which  is  ^  -* 
prima  facie  a  good  plea,  and  the  plaintiff  must  thereupon  reply 
that  the  lease  was  by  indenture ;  for  if  he  replies  a  sufficient 
estate  in  the  premises  generally,  he  waives  the  benefit  of  the 
estoppel;  (1  Saund.  276,  note  1).  Here  the  defendant  might 
have  given  the  statute  in  evidence  under  nil  debet,  (Salk.  278, 
pi.  1);  but,  having  pleaded  it,  the  plaintiff  had  no  other  course 
than  to  reply  that  the  demise  was  by  deed.  The  demurrer  to 
the  replication  was  therefore  properly  overruled. 

Judgment  affirmed. 

Cited  by  Counsel,  8  Barr.  283 ;  4  Wr.  307 ;  13  S.  132 ;  9  N.  365  ;  s.  c.  8  W. 
N.  C.  5. 


[Philadelphia,  Janttary  15, 1829.] 
Langer  against  Felton. 

IN  ERROB. 

There  is  no  estoppel  but  between  the  parties  to  a  deed. 
A  party  to  a  fraud  is  competent  to  prove  it. 

Writ  of  error  to  the  Court  of  Common  Pleas  of  Philadelphia 
county. 

Felton,  the  plaintiff  below,  brought  an  action  for  money  had 
and  received  against  Langer,  the  plaintiff  in  error.  On  the 
trial  the  plaintiff  below  offered  to  prove,  by  one  Catharine  Dred- 
ger, that  the  defendant  had  acknowledged  that  he  acted  as  the 
agent  of  the  plaintiff  in  purchasing  a  certain  lot  of  ground  from 
John  Dredger,  the  husband  of  the  said  Catharine,  and  herself: 
That  he  also  acknowledged  that  he  had  received  from  the  plain- 
tiff, for  the  purpose  of  paying  in  part  for  the  said  lot,  the  sum 
of  one  hundred  dollars :  That  the  price  agreed  upon  between 
the  said  John  Dredger  and  the  defendant,  for  the  said  lot,  was 
one  hundred  and  fifty  dollars  :  That  the  defendant  paid  to  John 
Dredger,  towards  the  price  of  the  said  lot,  fifty  dollars  only, 
and  that  the  balance  of  the  said  purchase  money,  to  wit,  one 
hundred  dollars,  was  secured  by  a  mortgage  given  by  the  plain- 
tiff to  the  deponent's  husband,  John  Dredger :  That  the  deed 
and  mortgage  were  prepared  by  the  defendant,  and  that  the 
witness  could  not  read. 

To  the  admission  of  this  evidence,  the  counsel  for  the  defend- 

155 


141  SUPREME  COURT  [Philadelphia, 

[Longer  v.  Fellon.] 

ant  objected,  and  in  order  to  enforce  the  said  objection,  he  pro- 
duced and  exhibited  to  the  court,  a  deed  from  the  said  John 
Dredger  and  wife,  to  the  plaintiff  for  the  said  lot,  dated  the  day 
of  ,  1824,  and  a  mortgage  executed  by  the  plaintiff  to  the 

said  John  Dredger,  dated  the  day  of  ,  1824,  to 

secure  the  payment  of  one  hundred  dollars,  and  referred  the 
court  particularly  to  the  consideration  money  stated  in  the  deed, 
and  the  receipt  for  the  same  signed  by  the  said  John  Dredger. 
r*142"l  ^^^  ^^^^  ^^  court  overruled  the  said  *objection,  and 
L  -•  permitted  the  witness  to  be  examined  as  to  the  facts 
offered  to  be  proved.  To  this  opinion  the  defendant's  counsel 
excepted. 

Phillips,  for  the  plaintiff  in  error. — The  witness  was  not  com- 
petent. She  could  not  be  permitted  to  contradict  her  acknowl- 
edgment in  the  deed. 

Dallas,  contra,  was  stopped  by  the  court. 

Per  Curiam. — There  is  no  estoppel  but  between  the  parties 
to  the  deed  But  here  the  offer  was  to  prove  a  fraud ;  and  there 
is  no  principle  clearer  than  that  a  party  to  the  fraud  is  compe- 
tent to  prove  it. 

Judgment  affirmed. 


[PhTLADELPHIA,  jAlJTTAilY  24, 1829.] 

Simmons  against  The  Commonwealth. 

IN   EKROR. 

An  indictment  is  not  vitiated  by  stating  an  offence  to  have  been  committed 
on  the  first  March  instead  of  the  first  day  of  March. 

In  an  indictment  for  fornication  and  bastardy,  an  omission  to  state  the  sex 
of  the  child,  is  fatal. 

This  was  a  writ  of  error  to  the  Court  of  Quarter  Sessions  of 
the  county  of  Philadelphia,  in  which  the  plaintiff  in  error, 
Henry  Simmons,  was  found  guilty  and  sentenced  upon  an  indict- 
ment for  fornication  and  bastardy.  The  indictment  set  forth 
that  Simmons,  "  on  the  first  March,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  twenty-eight,  at  the  county  afore- 
said, &c.,  did  commit  fornication  with  a  certain  Caroline  Black, 
and  a  bastard  child  on  the  body  of  her,  the  said  Caroline,  then 
and  there  did  beget,"  &c. 

Three  errors  were  assigned  in  the  judgment  of  the  court  of 
156 


Jan.  24,  1829.]      OF  PENNSYLVANIA.  142 

[Simmons  v.  The  Commonwealth.] 

Quarter  Sessions,  of  which  the  two  following  only  are  material, 
viz. 

1.  That  the  indictment  stated  no  day  of  the  month  on  which 
the  oiFence,  therein  set  forth,  was  committed. 

2.  That  it  did  not  state  the  sex  of  the  child. 

Brewster,  for  the  plaintiff  in  error,  cited  4  Binn.  541 ;  1 
Browne's  Rep.  59 ;  1  Chitty's  Crim.  L.  179,  217 ;  2  Chitty's 
Crim.  L.  522. 

Ctoxe,  for  the  commonwealth,  referred  to  Duncan  v.  Common- 
wealth, 4  Serg.  &  Rawle,  449. 

The  opinion  of  the  court  was  delivered  by 

Tod,  J. — The  expression  on  the  first  March,  leaving  out  the 
words  day  of,  careless  as  it  is  in  an  indictment,  might  be  suf- 
fered to  *pass.  But  the  omission  of  the  sex  of  the  child  r^-.  .  ^-i 
appears  substantial  error.  In  practice,  throughout  the  L  J 
commonwealth,  I  take  the  precedents  to  be  uniform.  In  the 
Commonwealth  v.  Pintard,  1  Browne,  59,  the  omission  was  held 
fatal.  Our  method  by  indictment  in  these  cases  comes  in  lieu 
of  the  English  proceedings  of  justices  of  the  peace,  by  an  order 
of  filiation,  in  which  the  precedents  invariably  require  the  sex 
to  be  stated.  In  Rex  v.  England,  1  Stra.  503,  this  omission 
uppearing,  the  order  of  the  justices  was  reversed  for  that  reason 
auly.  It  is  argued  that  the  sex  of  the  child  is  a  matter  wholly 
onconnected  with  the  substance  of  the  offence.  Perhaps  this 
is  true.  But  it  may  as  well  be  argued  that  the  name  of  the 
mother  is  also  a  matter  unconnected  with  the  substance  of  the 
offence,  and  therefore  might  be  omitted.  And  by  the  same 
rule,  in  every  criminal  case,  it  might  be  contended  that  it  is 
sufficient  to  state  the  bare  fact,  or  name  of  the  crime,  leaving 
out  all  the  usual  matters  of  circumstance  and  description.  In 
these  things  precedent  is  law.  But  there  is  utility  in  the  rule. 
Over  and  above  the  common  reasons  of  the  law  for  requiring 
minuteness  of  description  in  an  indictment,  there  seems  other 
reasons  why,  in  this  case,  the  record  should  identify  the  child 
as  accurately  as  may  be,  as  it  affords  almost  the  only  evidence 
of  the  relation  between  the  child  and  the  father ;  a  relation 
which,  imperfect  as  it  is,  gives  some  rights  and  imposes  some 
restraints.     1  Com.  Dig.  459  ;  Macklin  v.  Taylor,  Addis.  212. 

Judgment  reversed. 

Cited  by  Counsel,  8  W  213 ;  14  W.  N.  C.  171. 

An  indictment  for  bastardy,  stating  that  the  accused  in  the  county  aforesaid 
did  be.fjet  a  male  bastard  child  on  tlie  body  of  A.  B.  is  not  defective  in  not 
stating  that  the  child  was  born,  or  that  he  was  born  in  the  county :  Common- 
wealth V  Menefee.  14  W.  JS",  C.  170.   (Q.  iS.) 

157 


143  SUPREME  COURT  ir/iUadelphia, 


[Philadelphia,  Januaby  24, 1829.] 
Fox  against  Wood. 

IN  ERROR. 

The  officer  who  executes  a  warrant  for  the  collection  of  militia  fines,  is  not 
bound  to  know  that  the  person  on  whom  he  is  directed  to  execute  it,  is  an 
exempt. 

If  the  minutes  of  the  proceedings  of  a  Court  of  Appeals  are  lost,  the  sub- 
stance of  their  contents  may  be  proved  Consequently,  a  warrant  proved  to 
have  been  copied  from  the  return  of  a  Court  of  Appeals  and  compared  with 
it,  is  competent  evidence  to  be  left  to  the  jury. 

To  show  that  a  Court  of  A  ppeals  was  regularly  constituted,  it  is  necessary 
to  produce  tiie  commission  of  the  officer,  by  whose  order  it  was  constituted 
and  those  of  the  officers  who  composed  it. 

Writ  of  error  to  the  District  Court  for  the  city  and  county  of 
Philadelphia,  in  an  action  of  trespass  brouglit  by  David  C  Wood, 
the  defendant  in  error  and  plaintiif  below,  against  George  Fox, 
the  plaintiff  in  error  and  defendant  below,  who  was  a  collector 
of  militia  fines,  for  an  arrest  and  imprisonment  of  the  plaintiff's 
person,  as  a  delinquent  militia  man. 

r*l  441  *^^  *^®  *^^^^  ^^  ^^^®  cause,  the  defendant,  in  pursuance 
L  -'of  notice  from  the  plaintiff,  produced  the  original  warrant 
under  which  he  acted,  signed  by  George  F.'Hailer,  captain,  and 
countersigned  by  Robert  Patterson,  colonel,  dated  the  2nd  of 
June,  1820,  authorizing  the  defendant  to  collect  the  fines  from 
the  persons  named  therein,  among  whom  was  the  plaintiff; 
which  was  read  in  evidence  by  the  plaintiff.  The  warrant  was 
as  follows : — 

"  The  Commonwealth  of  Penn.sylvania." 
"  To  George  Fox greeting . 

"  Wherea.s,  the  persons  named  in  the  .schedule  or  list  hereunto 
annexed,  have,  by  the  Court  of  Appeals  of  their  proper  battalion, 
been  duly  sentenced  to  pay  the  fines  to  their  names  respectively 
subjoined ;  this  warrant,  therefore,  authorizes  and  requires  you 
to  demand  and  receive  of  all  and  each  of  the  persons  named  in 
the  said  schedule,  the  amount  of  fines  to  their  names  respectively 
annexed :  And  in  case  of  the  refusal  of  all  or  any  of  them  to 
pay  the  same,  then  to  levy  the  said  debt  and  costs,  of  the  goods 
and  chattels  of  all  or  any  of  the  delinquents  named  in  your 
schedule  annexed,  by  distress  and  sale  thereof,  returning  the  over- 
plus, if  any,  to  the  owner  or  owners  respectively  ;  but  for  want 
of  such  effects,  then  to  take  the  body  or  bodies  of  such  persons 
158 


Jan.  24, 1829.]      OF  PENNSYLVANIA.  144 

[Fox  V.  Wood.] 

named  in  the  said  1: -^t  respectively,  to  the  jail  of  the  county 
where  the  delinqueni.i  reside,  there  to  be  detained  until  the  fine 
and  costs  shall  be  paid  or  satisfied,  or  he  or  they  shall  be  other- 
wise legally  discharged.  Witness  my  hand  and  seal  this  30th 
day  of  May,  1820. 

Signed  "Georg'e  F.  Hailer, 

"  Captain  of  the  5th  Company. 
"Approved,  Robert  Patterson, 

"  Colonel  of  the  72d  regt.  P.  M." 

The  defendant  gave  in  evidence  the  commission  of  the  said 
George  F.  Hailer,  as  captain  of  the  5th  company,  72d  regiment 
of  Pennsylvania  militia,  and  produced,  as  a  witness,  Robert  Pat- 
terson, who  proved  that  in  May,  1820,  he  was  colonel  of  the  72d 
regiment  of  Pennsylvania  militia,  and  had  in  his  possession  the 
papers  of  the  regiment  and  company ;  the  returns  to  the  Court 
of  Appeals,  and  the  returns  made  by  the  Court  of  Appeals : 
That  he  had  searched  for  the  papers  on  which  the  warrant  was 
founded,  Ixit  could  not  find  them :  That  he  had  them  and  could 
only  account  for  their  absence  by  a  belief  that  they  were  destroyed 
or  thrown  aside  in  consequence  of  the  former  counsel  in  the  suit 
having  told  him  the  suit  was  stopped,  and  the  matter  settled : 
That  the  warrant  in  this  case  was  in  the  handwriting  of  a 
former  partner  of  the  witness,  who  copied  it  from  the  return  of 
the  Court  of  Appeals,  and  that  he  and  the  witness  had  comj)ared 
them  together. 

The  defendant  also  gave  in  evidence  the  appointment  of  the 
Court  of  Appeals,  as  published  in  the  Amei'ican  Sentinel,  which 
Colonel  Patterson  verified  on  oath. 

*The  court  below  charged  the  jury  that  to  justify  the  r^-i^c-i 
arrest,  the  defendant  must  prove  that  a  Court  of  Appeals  L  -■ 
was  held;  consisting  of  three  commissioned  officers :  That  they 
were  appointed  by  the  colonel,  and  were  under  oath  or  affirmation 
to  perform  their  duties  faithfully  and  impartially,  and  that  the 
only  legal  evidence  of  this  was  the  proceedings  or  minutes  of 
the  Court  of  Appeals,  regularly  authenticated,  and  the  commis- 
sion of  the  officer  appointing,  and  those  of  the  officers  compos- 
ing the  Court :  That  the  defendant  had  failed  to  do  this  in  every 
particular :  That  if  the  proceedings  were  lost  or  destroyed,  it 
was  his  misfortune,  and  the  plaintiff  had  a  right  to  call  for  com- 
plete evidence  of  the  authority  by  which  he  had  been  deprived 
of  his  liberty. 

The  court  also  charged  that  the  defendant  knew,  or  was  bound 
to  know,  that  the  plaintiff  was  an  exempt ;  and  nothing  but  great 
carelessness,  to  say  the  least  of  it,  could  have  produced  the  in- 
sertion of  the  plaintiff's  name  in  the  warrant  on  the  part  of  the 

159 


145  SUPREME  COURT  [PhUadelphia, 

[Fox  V.  Wood.] 

militia  officers :  That  the  defendaut's  proceedings  were  wholly 
unwarranted  by  law,  and  he  could  not  shelter  himself  undej^ the 
plea  of  obedience  to  his  superiors :  That  he  was  bound  to  make 
out  a  complete  justification,  and  the  plaintiff  was  therefore  enti- 
tled to  damages. 

To  this  opinion  the  counsel  for  the  defendant  excepted,  and 
in  this  court  assigned  the  following  errors  : 

1.  Because  the  warrant  given  in  evidence  by  the  defendant 
below,  in  pursuance  of  the  call  of  the  plaintiff,  was  a  sufficient 
justification  of  the  defendant  under  the  circumstances  of  the 
case. 

2.  Because  the  court  did  not  charge,  that  the  proceedings  of 
the  Court  of  Appeals  and  the  warrant  founded  thereon,  were  a 
legal  justification  of  the  defendant. 

3.  Because  the  court  charged,  that  the  defendant,  a  collector 
of  militia  fines,  was  bound  to  know,  that  the  plaintiff  was  an 
exempt,  although  he  was  not  a  party  to  the  proceedings  of  the 
court  martial. 

4.  Because  the  court  charged  that  if  the  proceedings  of  a 
court  martial  were  lost,  no  secondary  evidence  could  be  given 
of  them,  and  that  all  persons  who  acted  under  the  authority 
of  such  proceedings  must,  after  their  loss,  be  treated  as  tres- 
passers. 

The  cause  was  argued  by  R.  Randall,  and  J.  Randall,  for  the 
plaintiff  in  error,  who  cited  1  Wash.  C.  C.  Rep.  433 ;  3  Serg.  & 
Rawle,  169 ;  4  Serg.  &  Rawle,  83 ;  2  Starkie,  156. 

D.  P.  Broi/m  and  Rawle,  for  the  defendant  in  error,  cited  2 
Binn.  209 ;  3  Serg.  &  Rawle,  369. 

The  opinion  of  the  court  was  delivered  by 

Gibson,  C.  J. — Whether  a  court  martial  has  jurisdiction  of 
the  person  of  an  exempt,  is  I  apprehended,  not  open  to  debate ; 
it  having  been  ruled  during  the  last  term  of  this  court  at  Cham- 
bersburg,  that  the  liability  of  the  accused  to  military  duty,  is  the 
foundation  of  the  whole  charge,  and  consequently  that  the  ad- 
judication of  the  court  on  this,  as  on  every  other  fact  necessary 
r*l4n  ^^  ^  made  out  by  the  prosecutor,  *is  conclusive  where 
L  -'  the  same  fact  again  comes  into  controversy.  The  Dis- 
trict Court,  therefore,  erred  in  charging  that  the  officer  who  ex- 
ecuted the  warrant,  was  bound  to  know  that  the  plaintiff  was  an 
exempt.  There  was  also  error  in  charging,  as  it  seems  to  me 
the  court  did,  that  if  the  minutes  of  the  proceedings  were  lost, 
the  substance  of  their  contents  could  not  be  proved  by  second- 
ary evidence ;  and  although  this  might  be  immaterial,  if  second- 
160 


J"an.  24, 1829.]       OF   PENXSYLYANIA.  146 

[Fox  V.  Wood.] 

ary  evidence  had  iii  fact  not  been  given,  yet  it  would  seem, 
that  the  warrant  proved  by  Colonel  Patterson  to  have  been 
copied  from  the  minutes,  and  afterwards  compared  with  them, 
was  competent  evidence  to  be  left  to  the  jury.  There  was, 
however,  no  error  in  any  other  part  of  the  charge.  It  was 
essentially  necessary  to  show  the  authority  of  the  officer  by 
whose  order  the  court  was  constituted,  and  of  the  members  by 
whom  it  was  composed,  and  this,  if  disputed,  could  be  done 
only  by  producing  their  commissions.  If  the  defendant  fail  in 
this,  there  must  be  a  verdict  against  him,  for  it  is  certain  that  a 
warrant  unsustained  by  the  sentence  of  a  court  regularly  con- 
stituted, affords  no  protection. 

HuSTOX,  J.,  (after  stating  the  facts  and  the  charge  of  the  court 
below,)  delivered  the  following  opinion. 

The  requisites  to  constitute  a  legal  court  of  appeals  is  correctly 
set  out  in  the  first  paragraph  of  the  charge.  This  is  not  ques- 
tioned. The  act  is  express,  and  a  decision  of  this  court  in  Wil- 
son V.  John,  2  Binn.  209,  had  settled  that  this  must  be  shown 
by  the  collector  when  sued  as  a  trespasser.  The  commission  of 
the  officer  appointing  the  court  martial,  of  each  of  the  officers 
composing  it,  and  that  they  were  sworn,  must  appear,  or  the 
<lefcndant  is  not  justified.  If  any  of  the  commissions  are  lost, 
the  fact  that  they  existed,  and  their  contents,  may  be  proved. 
Moore  v.  Houston,  3  Serg.  &  Rawle,  191.  But,  in  this  case,  no 
evidence  was  given  or  offered,  of  the  existence  or  loss  of  the 
commission  of  the  colonel ;  no  evidence  that  he  appointed  the 
court  of  appeals  ;  that  it  was  composed  of  commissioned  officers  ; 
that  they  were  sworn,  or  that  they  met  or  acted.  The  want  of 
all  this  is  now  alleged  to  be  cured,  because  it  would  seem  tlie 
defendant,  after  the  plaintiff  had  made  out  his  case,  handed  him 
his  warrant,  and  the  ])laintiff's  counsel  read  it ;  but  it  was  no 
part  of  his  case,  and  was  the  Hinc  qua  non  of  the  defendant's 
defence.  There  may  be  instances  Avhere  the  plaintiff,  to  make 
out  his  own  case,  must  read  a  deed,  or  book,  or  document ;  and, 
it  being  jmrt  of  his  case,  and  without  which  he  could  not  recover, 
he  may  l)e  precluded  from  contradicting  or  denying  it.  Th(! 
rule  is  a  strict  one,  and  has  some  limitations  not  necessary  to  be 
mentioned  here ;  for  this  evidence  was  not  necessary  to  tlu; 
])laintiff's  case.  It  would  seem  the  jailer  was  reading  his  copy, 
(wholly  unnecessary,)  and  the  defendant  handed  the  original.  I 
should  be  sorry  if  the  rights  of  parties  depended  on  matters  so 
trifling.  This  case  does  not  come  within  the  rule,  and  it  must 
be  considered  as  it  *was  below,  as  really  the  defendant's  r*-|4--| 
evidence,  and  his  sole  })rctence  of  defence.  L         -^ 

The  second  error  as^^igned  is,  because  the  court  did  not  charge 

VOL.  I.— 11  IGl 


147  SUPREME  COURT  [Philadelphia, 

[Fox  V.Wood  J 

the  jury,  that  tlie  proceedings  of  the  court  of  appeals  and  war- 
rant were  a  legal  justification  of  the  defendant.  Jsow  I  have 
shown  the  court  had  no  evidence,  legal  or  illegal,  that  there  ever 
was  a  court  of  aj^peals  in  that  regiment. 

The  last  error  assigned,  and  it  includes  all  the  others,  is, 
"  because  the  court  charged  the  jury,  that  if  the  proceedings  of 
the  court  martial  were  lost,  no  secondary  evidence  could  be 
given  of  them,  and  that  the  persons  who  acted  under  the 
authority  of  such  proceedings,  must,  after  their  loss,  be  treated 
as  trespassers." 

In  the  first  place,  the  court  said  no  such  thing.  There  was 
no  secondary  evidence  offered  of  the  appointment,  commissions, 
oaths,  or  proceedings  of  the  Court  of  Appeals,  or  of  any  part 
of  them,  except  the  schedule  annexed  to  the  warrant ;  and  the 
judge  did  not  say  one  word  about  secondary  evidence  in  the 
cause.  As  none  was  offered,  it  was  not  in  his  mind.  He  does 
say,  the  only  legal  evidence  is,  as  decided  in  2  Binn.  209,  and 
cites  it.  If  secondary  evidence  had  been  offered,  he  must  have 
decided  on  its  admissibility  first,  and  its  effect  afterwards.  He 
says  again,  the  plaintiff  has  a  right  to  call  for  comj)lete  evidence 
of  the  authority  by  which  he  was  deprived  of  his  liberty.  Now, 
complete  evidence  cannot  mean  more  than  legal  evidence.  The 
defendant  having  omitted  to  offer  secondary  evidence,  afler 
having  proved  the  loss  of  some  of  the  documents,  omitted  to 
prove,  or  to  offer  to  prove,  tlie  contents  of  them ;  nay,  even 
omitted  to  produce  the  commissions  which  were  not  stated  to  be 
lost,  and  then  asks  this  court  to  infer,  from  the  expressions  of  a 
Judge,  used  as  applicable  to  a  total  failure  of  proof,  that  he 
Avould  have  rejected  proof  of  the  contents  of  lost  papers ;  in 
ether  words,  to  reverse  on  suspicion  of  what  would  have  been 
decided,  if  certain  matters  had  been  offered. 

But  a  matter  was  much  argued,  which  is  totally  immaterial  to 
the  cause,  viz. :  the  third  error,  that  the  judge  said  the  defend- 
ant w^as  bound  to  know  that  the  plaintiff  was  an  exempt.  I  say 
totally  immaterial,  for,  if  the  defendant  were  bound  to  show  a 
regular  Court  of  Appeals,  and  their  proceedings,  his  defence 
fails  instantly. 

The  legislature,  on  the  subject  of  exempts,  have  been  very 
explicit.  As  to  their  meaning  I  cannot  doubt.  In  the  act  of 
181 G,  the  c^aptain  is  to  make  two  lists;  one,  of  all  persons 
liable  to  perform  militia  duty,  and  another,  of  persons  who  shall 
decline  to  be  enrolled,  &c. ;  which  last  are  to  be  returned  as  ex- 
empts. Some  disputes  having  arisen  on  the  construction  of  the 
word  decline,  wlion  the  act  of  LSI 8  was  passed,  in  which  it  is 
declared  that  they  who  shall  omit  or  decline  to  be  enrolled  shall 
be  considered  as  exempts,  to  remove  all  doubts,  it  is  added,  "and 
162 


Tan.  24, 1829.]      OF  PENNSYLVANIA.  147 

[Fox  t'.  Wood.] 

every  person  omitting,  or  declining  to  make  a  choice,  shall  be 
considered  as  an  exempt."  Two  rolls  are  to  *be  made  r,^-,  .  o-i 
out,  and  one  to  be  sent  to  the  commissioners,  who  are  to  ^  J 
charge  each  exempt  four  dollars  in  addition  to  his  county  tax. 

And  it  is  further  provided,  that  neither  the  commissioners, 
nor  any  other  tribunal  shall  exonerate  such  exempt ;  nor  has  he 
the  right  of  appealing  to  any  other  tribunal,  except  the  Court 
of  Appeals  of  the  regiment  in  which"  he  resides.  The  county 
commissioners  may,  however,  exonerate  on  a  certificate  j)roduced 
to  them  by  the  exempt  under  the  signature  of  the  president  of 
the  Court  of  Appeals,  aud  the  commissioners  were  bound  to 
procure  sucli  certificate  to  be  produced,  if  necessary. 

Why  exempts  were  to  be  heard  before  the  Court  of  Appeals  is 
well  known.  All  who  omitted  to  procure  themselves  to  be  en- 
rolled were  set  down  as  exempts,  aud  their  names  sent  to  the 
commissioners.  Some  of  these  attended  and  mustered  every 
day;  and,  on  satisfying  the  Court  of  Appeals  of  this,  they  got 
a  certificate,  and  were  freed  from  paying  the  tax  of  four  dollars. 
But,  except  for  the  jjurpose  of  exonerating  them,  the  Court  of 
Appeals  had  no  more  authority  over  an  exempt,  nor  had  their 
collector  any  more  right  to  imprison  an  exempt,  than  a  minister 
of  the  gospel  or  a  judge  of  this  court,  who  are  totally  exempted 
from  all  militia  duty. 

Our  laws  have  provided  for  this  class  of  citizens  most  care- 
fully. There  are  people  who  speak  disparagingly  of  those  who 
will  not  bear  arms.  We  have  no  right  to  do  so,  and  I  feel  no 
disposition  to  do  so.  The  legislature  have  made  the  law — it  is 
our  duty  to  enforce  it.  In  my  opinion,  no  officer,  and  no  Court 
of  Appeals,  can  touch  an  exem})t  without  violating  an  express 
and  phiin  law,  and  being  a  trespasser. 

Although  I  did  not  agree  to  the  decision  at  Chambersburg,  it 
will,  I  think,  be  found  to  be  the  case  not  of  an  exempt,  or  one 
alleging  himself  to  be  so ;  but  that  of  a  man  clearly  within  the 
jui'isdiction  of  a  Court  of  Appeals. 

Judgment  reversed,  and  a  venire  facias  de  novo  awarded. 

Cited  by  Counsel,  2  Barr.  127  ;  2  J.  3o2 ;  2  G.  92. 
Cited  by  the  Court,  8  Wli.  115 ;  6  W.  436 ;  7  Barr,  271. 


163 


149  SUPREME  COURT  [riiiladdphia, 


[*149]  *[PnrLADELPHiA,  Jaitoabt  24, 1829.] 

Lee  against  Wright  and  Others. 

IN  KRBOR. 

An  amendment  of  the  declaration  may  be  permitted  on  the  second  trial,  after 
the  reversal  of  a  former  judgment. 

Where  a  person  dies  intestate  leaving  a  debt  or  debts  unpaid,  the  children 
of  such  intestate  cannot  maintain  a  suit  for  any  part  of  his  estate,  or  the  pro- 
ceeds thereof,  against  one  having  the  property  of  such  intestate,  or  holding  it 
as  their  trustee ;  but  administration  must  be  taken  out,  and  the  debts  first  paid. 

If  a  person  intermeddle  with  the  goods  of  an  intestate,  or  the  proceeds 
thereof,  and  act  as  executor  de  son  tort,  no  administration  being  taken  out,  no 
trust  can  be  raised  in  favour  of  the  children  as  to  such  property,  or  the  pro- 
ceeds thereof,  or  any  part  of  the  same,  so  to  enable  them  to  sue  for  such  prop- 
erty, while  the  creditors  of  the  estate  remain  unpaid. 

This  case,  which  was  an  action  brought  by  the  defendants  in 
error,  Jane  Wright  and  others,  who  were  stated  in  the  writ  to 
be  the  infant  children  of  John  Wright,  deceased,  and  who  sued 
by  their  guardian,  against  William  Lee,  the  plaintiff  in  error, 
had  been  before  this  court  at  a  former  term,  when  the  judgment 
of  the  District  Court  was  reversed,  and  a  venire  facias  de  novo 
awarded.     See  14  Serg.  &  Rawle,  105. 

When  the  trial  again  came  on  in  the  District  Court,  the  plain- 
tiffs below  moved  to  file  two  additional  counts  to  the  declaration, 
which  originally  was  for  money  had  and  received. 

The  first  of  these  counts  stated,  that  the  defendant  below  was 
possessed  of  sundry  goods  and  chattels  of  the  value  of  two  thou- 
sand dollars,  which  were  by  him  held  in  trust  for  the  sole  use 
and  benefit  of  the  plaintiffs ;  and  that  he  M'as  bound  justly  and 
truly  to  administer  and  keep  the  same,  and  faithfully  to  apply 
them  to  the  sole  use  and  benefit  of  the  plaintiffs.  In  considera- 
tion whereof,  the  defendant  assumed  and  promi.sed  to  keep,  ad- 
minister, and  apply  them  as  aforesaid.  Nevertheless,  he  did 
not  truly  and  faithfully  administer  and  apply  them  as  afore- 
said, but  on,  &c.,  did  apply,  and  convert  the  said  goods  and 
chattels,  and  the  proceeds  thereof,  to  his  own  use  and  Ix^nefit, 
and  hath  refu.sed  to  make  any  compensation. 

The  second  count  stated,  that  the  defendant  below  held  a  cer- 
tain bond  and  warrant  dated,  &c.,  for  two  thousand  dollars,  the 
same  being  the  consideration  money  for  the  purchase  made  by 
William  Chase  of  the  defendant,  of  certain  goods  and  chattels 
held  by  the  defendant,  for  the  use  and  l^enefit  of  the  plaintiffs. 
In  consideration  whereof,  he  assumed  and  promised  to  hold  the 
bond  for  the  exclusive  use  of  the  plaintiffs,  and  apply  the  money 
to  their  use  and  none  other.  Nevertheless,  the  defendant  caused 
164 


y^n.  24, 1829.]       OF  PENNSYLVANIA.  149 

[Lee  ».  Wright  and  others.] 

judgment  to  be  entered  and  execution  to  be  issued,  and  levied 
on  the  said  goods  and  chattels,  and  delivered  up  to  the  said  \\  il- 
liam  Cliase  half  of  the  goods  for  the  said  Chase's  own  proper 
use,  and  not  for  the  use  of  the  plaintifis,  *and  took  pos-  i-  ^.  f.^-. 
session  of  the  other  half  to  his  own  use,  and  hath  re-  L  ' 

fused  to  make  any  compensation. 

The  defendant  objected  to  the  filing  of  these  additional  counts  ; 
but  the  court  permitted  them  to  be  filed,  which  was  now  assigned 
for  error. 

Several  other  points  arising  upon  the  record,  were  made  in 
this  court,  and  argued  by  P.  A.  Broume,  for  the  plaintiff  in 
error,  and  by  J.  P.  Nbrris,  Jr.,  and  Raude,  for  the  defendants 
in  error,  some  of  which  will  be  found  in  the  former  report  of  this 
case.  Those  which  had  not  been  already  decided,  are  fully 
stated  in  the  opinion  of  the  court  which  was  delivered  by 

Tod,  J. — As  to  any  point  already  decided  in  this  cause  by  our 
predecessors,  14  Serg.  &  Rawle,  105, 1  hold  myself  bound  by  the 
decision.  Ev'ery  exception,  then  taken  and  overruled  and  now 
repeated,  is  thus  answered  at  once :  And  the  joinder  in  the  suit 
by  the  three  plaintifis  having  been  then  supported,  is  supported 
by  us.  The  two  new  counts  seem  to  have  been  very  properly 
admitted  by  way  of  amendment.  So  there  remains  but  one 
matter  to  be  considered.  In  the  court  below  the  defendant's 
counsel  insisted — "  That  where  a  person  dies  intestate,  leaving 
personal  estate  and  leaving  a  debt  or  debts  unpaid,  the  children 
of  sucli  intestate  cannot  maintain  a  suit  for  any  part  of  the  same 
estate,  or  of  the  proceeds  thereof,  against  one  having  the  prop- 
erty of  such  intestate  or  holding  as  their  trustee,  but  adminis- 
tration must  be  taken  out  and  the  debts  first  paid."  And  again, 
"  That  if  a  person  or  persons  intermeddle  with  the  goods  of  an 
intestate,  or  the  proceeds  thereof,  and  act  as  executors  de  son 
tort,  no  administration  being  had,  no  trust  can  be  raised  in 
fevour  of  the  children  as  to  such  property,  or  the  proceeds 
thereof,  or  any  part  of  the  same,  so  as  to  enable  them  to  sue  for 
the  same  while  the  creditors  of  the  estate  remain  unpaid."  The 
court,  in  charging  the  jury,  answered  both  these  proijositions  in 
the  negative,  which  I  apprehend,  was. error.  This  point  was 
not  decided  when  the  cause  was  formerly  in  this  court.  The 
opinion  given  by  Duncan,  J.,  repeatedly  supposes  that  no  debts 
remained  due.  It  has  been  argued,  that  in  fact  no  debts  were 
shown  on  the  trial ;  an  argument  which  is,  perhaps,  not  sup- 
ported by  the  evidence  on  the  record.  But  that  seems  to  be  a 
matter  not  now  for  discussion.  The  court,  in  substance,  directed 
the  jury  that  with  or  without  the  incumbrance  of  debts  upon  the 
estate,  the  action  was  maintainable  by  the  children.     The  hard- 

165 


150  SUPREME  COURT  [PhiUuMphia, 

[Lee  V.  Wright  and  others.] 

ship  of  the  case,  which  has  been  dwelt  upon,  seems  to  Ihj  very 
true.  The  two  verdicts  show  it.  So  any  other  case  would  be  a 
hard  one  of  children  suing  in  right  of  their  father  for  personal 
property,  antl  making  out  a  good  title  in  every  respect  except 
that  they  cran  show  no  letters  of  administration.  But  if  in  one 
case  a  particular  hardship  is  to  be  mended  at  the  expense  of 
general  rules,  it  must  be  so  in  other  cases,  and  there  will  be 
danger  of  a  very  inconvenient  practice  of  permitting  the  assets 
r*i  riT  s»d  debts  of  an  intestate  to  be  sued  for  by  the  *next  of 
L  J  kin,  and  recovered  without  letters  of  administration. 
If  this  can  be  done  either  directly  and  at  once,  or  circuitously 
by  setting  up  an  executor  de  son  tort,  under  the  name  of  a  trus- 
tee, the  consequence  seems  most  certain  that  when  anything 
unfair  is  intendetl,  no  administration  will  be  taken  out  in  any 
case.  It  will  aiford  every  temptation  and  almost  impunity  for 
embezzlement.  And  suppose  the  very  best  intentions  in  the 
next  of  kin  ;  that  alters  not  the  case,  unless  we  have  a  right  to 
substitute  their  integrity  in  lieu  of  the  pledges  known  to  the 
law ;  such  as  oaths,  inventories,  and  bonds  with  security ; 
shackles  which  it  is  not  likely  any  man,  honest  or  otherwise,  will 
take  the  trouble  of  assuming,  if  without  that  trouble  they  can 
be  permitted,  in  the  character  of  trustees  and  cestui  que  tinisU, 
to  hold  all  the  legal  powers  of  administration.  Almost  the  only 
compulsion  which  our  law  makes  use  of  to  oblige  those  inter- 
ested in  his  intestate's  assets  is  the  impossibility  of  suing  with- 
out them.  No  case  has  been  shown  of  an  action  sustained  for 
such  assets,  unless  by  or  against  a  lawful  administrator.  An 
executor  de  son  tort,  can  maintain  no  action  ;  2  Com.  507.  A 
recovery 'in  this  case  cannot  be  pleaded  against  a  rightful  ad- 
ministrator, and  so  much  of  the  effects  as  belonged  to  the  intes- 
tate may  be  recovered  a  second  time  from  the  defendant.  Vin. 
Ab.  222,  223,  224,  225. 

As  to  this  being  a  claim  of  equity,  I  apprehend  that  even  in 
equity,  no  such  action  could  be  suffered.  In  Humphrey  v. 
Humphrey,  3  P.  Williams,  349,  a  bill  for  an  account  of  the 
estate  of  a  deceased  person,  though  the  plaintift'  had,  under  the 
statute  of  distribution,  an  unquestionable  right  to  the  effects 
when  recovered,  yet,  expressly  because  he  had  not  administered, 
the  Lord  Chancellor  rejected  the  bill,  saying  that  "  for  aught 
that  appears  to  the  contrary  there  may  be  debts  due."  True, 
a  creditor  may  administer,  if  nobody  else  will.  But,  I  appre- 
hend, that  in  nineteen  cases  out  of  twenty,  a  creditor  will  very 
wisely  prefer  to  lose  his  debt  rather  than  take  in  hand  to  ad- 
minister on  the  estate  of  a  stranger.  And  as  to  there  being  no 
danger  of  mischief  to  arise  from  want  of  a  legal  administrator, 
because  whoever  intermeddles  is  answerable  to  creditors  as  ex- 
166 


Jan.  24,  1829.]       OF   PEXXSYLVANIA.  151 

[Lee  V.  Wri~ht  and  others.] 

editor  de  son  tort,  it  may  be  observed  that  such  remedy  must 
always  be  doubtful,  or  coutentious.  Besides,  there  is  uo  inven- 
tory, no  security;  the  wrongful  executor  may  be  insolvent,  he 
may  move  out  of  the  county,  out  of  the  commonwealth.  Fur- 
ther, this  court  has  decided  in  Xass  v.  Vanswearingen,  7  Serg. 
&  Rawle,  192;  that  on  a  judgment  against  such  wrongful  execu- 
tor, the  lands  of  the  intestate  cannot  be  taken  in  execution,  so 
that  without  administration,  the  remedy  of  creditors  must  be, 
in  almost  every  respect,  illusory.  But  our  own  statute  law 
seems  conclusiv^e  of  the  question.  It  expressly  gives  to  the 
next  of  kin,  &c,  a  right  only  to  "  what  remaiueth  clear  after 
all  debts  and  funeral  and  just  expenses  of  every  sort,  first  al- 
lowed and  deducted ;"  Purd.  Dig,  372.  It  directs  refunding  bonds 
to  be  given.  It  enables  creditors  and  legatees  to  remove  even  a 
rightful  executor  or  administrator  from  his  *office,  unless  r-^-.  ;-.^-| 
additional  security  is  entered ;  lb.  614.  It  enacts  tiiat  -  "-• 
even  letters  of  administration,  though  granted  in  all  the  forms 
of  law,  to  the  proper  persons,  by  the  proper  officer,  if  without 
bond  and  sureties,  shall  be  void  and  of  no  effect,  ''and  the 
officer  granting  the  same  and  his  sureties,  shall  be  ipso  facto 
liable  to  ])ay  all  damages ;"  lb.  611.  Now  can  it  be  said,  when 
the  act  of  assembly  is  so  peremptory  to  deny  all  authority  to 
an  administrator  who  has  neglected  to  give  security,  though  ap- 
pointed by  the  proper  officer,  commissioned  and  sworn,  ytt  that 
the  same  authority  may  in  another  way  be  legally  assumed  by 
whoever  may  think  fit  to  assume  it,  without  oath,  or  a])point- 
ment,  or  sureties,  or  any  res]>onsil)ility,  except  what  every  tres- 
passer incurs  ?  Over  and  above  the  security  of  private  rights, 
the  public  revenue  is  concerned.  So  much  of  that  as  arises 
from  the  tax  ou  collateral  inheritances,  depends  cliiefiy  upon 
executors  and  administrators.  They  and  their  sureties  are  made 
responsible  by  the  law ;  Pamj^h.  Ed.  1826,  page  227.  And,  by 
the  5th  section,  it  is  enacted,  tliat,  "  In  addition  to  the  oath  now 
required  by  law  to  be  taken  by  executors  and  administrators,  they 
shall  take  an  oath  or  affirmation  that  he  or  she  will  diligently 
and  faithfully  regard  and  well  and  truly  comply  with  the  pro- 
visions of  this  act;  which  oath  or  affirmation  the  registers  of 
wills  for  the  respective  counties  are  hereby  authorizetl  and  re- 
quired to  administer  and  to  place  the  same  of  record  with  the 
usual  oath  or  affirmation."  The  unanimous  opinion  of  the  court 
is,  that  this  judgment  must  be  reversed. 

Judgment  reversed,  and  a  venire  facias  de  novo  awarded. 

Cited  by  Counsel,  1  Wh.  287 ;  5  Wh.  354 ;  8  W.  &  S.  30 ;  7  Barr,  127 ;  4  H. 
431 ;  1  S.  496 ;  10  W.  N.  C.  18  ;  13  W.  X.  C.  3-56. 

Cited  by  the  Court,  1  Penn.  li.  91 ;  3  Penn.  E.  131 ;  3  S.  150. 

167 


152  SUPREME  COURT  [PhUadelj^hio., 


[Philadelphia,  January  24, 1829.] 
The  Farmers'  and  Mechanics'  Bank  against  Boraef. 

IN   ERROR. 

An  entry  made  by  a  clerk  in  a  book  of  a  bank,  of  a  deposit  made  by  a  cus- 
tomer, immediately  before  an  entry  made  by  him  of  the  game  deposit  in  the 
customers'  bank  book,  and  snpported  by  the  oath  of  the  clerk,  is  evidence  to 
go  to  the  jury,  together  with  the  customer's  book  and  the  testimony  of  the 
clerk. 

The  defendant  in  error,  Henry  Boraef,  brought  this  action 
of  assumpsit  against  the  Farmers'  and  Mechanics'  Bank,  to  re- 
cover the  sum  of  eight  hundred  dollars,  alleged  to  have  been 
dejK)sited  by  him  with  the  bank. 

On  the  trial,  the  plaintiff  gave  in  evidence  his  bank  book, 
containing  an  entry  made  by  Henry  Meyers,  a  clerk  of  the 
bank,  of  a  deposit  of  eight  hundred  dollars,  by  the  plaintiff,  on 
the  7th  of  October,  1825.  He  also  produced  a  witness,  who 
swore  to  having  made  such  a  deposit  on  that  day. 
r*l  ^X[  *The  defendants  then  offered  to  give  in  evidence  an 
*■  '  -■  entry  in  a  book  of  the  bank,  of  the  deposit  made  by  the 
plaintiff  on  the  7th  of  October,  1825,  supported  by  the  oath  of 
Henry  Meyers,  the  clerk  who  made  it ;  the  said  entry  having  been 
made  by  the  said  clerk  at  the  time  of  the  deposit,  and  immedi- 
ately before  the  entry  made  by  him  in  the  plaintiff's  bank  book ; 
both  entries  having  reference  to  the  same  deposit.  The  court 
admitted  the  witness,  for  the  purpose  of  proving  the  deposit  to 
have  been  made,  as  it  appeared  in  the  book  of  the  bank,  but 
rejected  the  book  itself.  The  witness,  however,  knowing  nothing 
but  from  the  entry  in  the  book,  and  being  unable  to  refresh  his 
recollection  by  an  inspection  of  it,  the  counsel  for  the  defendants 
below  excepted  to  the  opinion  of  the  court. 

Purdon,  for  the  plaintiffs  in  error. — The  entry  in  tlie  book 
of  the  bank,  supported  by  the  oath  of  the  clerk  who  made  it, 
ought  to  have  been  admitted  in  evidence,  though  the  clerk  had 
no  recollection  except  what  he  derived  from  the  entry.  It  was 
made  in  the  book  of  original  entries,  in  the  usual  course  of  deal- 
ing between  the  parties,  authorized  by  law,  and  was  offered  after 
the  plaintiff's  book  had  been  given  in  evidence.  The  oath  of  a 
party  making  an  entry  at  the  time  of  the  transaction,  is  always 
received  in  evidence  in  Pennsylvania.  To  exclude  such  evidence 
in  a  ca.se  like  this,  would  be  almost  to  hazard  the  existence  of 
banka  The  clerks,  amidst  the  hurrv  of  extensive  business, 
168 


Jan.  24, 1829.]       OF  PENNSYLVANIA.  153 

[The  Farmers'  and  Mechauics'  Bank  v.  Boraef.] 

cannot  possibly  have  any  recollection  of  particular  deposits,  and 
the  exclusion  of  the  books  would  leave  them  altogether  without 
evidence.  The  books  are  the  only  records  of  the  transactions 
of  banks.  The  apprehension  that  frauds  may  possibly  be  com- 
mitted by  clerks,  is  not  a  sufficient  reason  against  evidence  of 
this  sort.  The  books  of  tradesmen  are  liable  to  an  equal,  and 
even  a  greater  objection,  because  the  books  of  banks  check  each 
other  so  completely,  that  it  is  impossible  to  commit  a  fraud  UU" 
less,  when  the  clerk  makes  a  false  entry,  he  puts  the  balance  of 
the  money  into  his  pocket,  which  is  scarcely  practicable.  There 
are  many  authorities  in  favour  of  the  admission  of  such  evidence 
as  the  court  below  rejected.  Patton's  Administrators  v.  Ash,  7 
Serg.  &  Rawle,  124 ;  2  Co  wen,  765 ;  Union  Bank  v.  Natt,  3 
Pick.  96  ;  Philadelphia  Bank  v.  Officer,  12  Serg.  &  Rawle,  49  ; 
Ridgway  v.  Farmers'  Bank  of  Bucks  County,  12  Serg.  &  Rawle, 
256.  The  doctrine  in  relation  to  the  admission  of  books  in  evi- 
dence has  latterly  been  extended  much  beyond  its  original  limits, 
by  following  out  the  principle  on  which  tradesmen's  books  are 
received.  Speer  v.  Saunders,  1  Bay,  119;  Frazier  v.  Drayton, 
2  Nott  &  M'Cord,  471  ;  Richards  v.  Howard,  Id.  474;  Ingra- 
ham  V.  Bockius,  9  Serg.  &  Rawle,  287 ;  Faxson  v.  Hollis,  13 
Mass.  Rep.  427  ;  Owens  v.  Speed,  5  Wheat.  433. 

Kittera,  for  the  defendant  in  error. — The  evidence  of  the 
deposit  claimed  by  the  plaintiff  below,  was  an  entry  in  his  bank 
book,  made  by  the  clerk  of  the  bank,  and  fortified  by  the  oath 
of  the  person  who  made  the  deposit.  The  defendants  then 
offered  a  memorandum  *book,  without  stating  by  what  j-^,  p^-i 
it  was  to  be  followed  up ;  and  the  question  is,  whether  L  -• 
this  blotter,  standing  alone,  was  admissible  in  evidence.  The 
supposed  accuracy  of  the  books  of  banks,  and  the  impossibility 
of  committing  mistakes,  is  disproved  by  this  case.  There  is  no 
check  upon  an  entry  in  the  blotter,  but  there  is  on  an  entry  in 
the  depositor's  bank  book,  because  depositors  always  examine 
the  entry  immediately  after  it  is  made.  The  plaintiff's  bank 
book  constituted  the  evidence  between  the  parties,  and  is  con- 
clusive unless  error  be  proved.  If  the  clerk  had  been  called  to 
prove,  that  instead  of  eight  hundred  dollars  he  had  received 
only  eighty,  he  miglit  perhaps  have  been  admitted ;  but  he  was 
not  called  to  impeach  the  entry  in  the  bank  book,  but  to  prove 
that  he  had  made  an  entry  of  a  different  amount  in  another 
book.  The  bank  ought  to  have  shown,  and  they  might  easily 
have  done  so,  what  were  their  receipts  on  the  day  on  which  the 
deposit  was  made. 

The  opinion  of  the  court  was  delivered  by 

169 


154  SUPREME  COURT  ^Philadelphia, 

[The  Farmers'  and  Mechanics'  Bank  v.  Boraef.] 

Tod,  J. — Boraef,  tlie  plaintiff  below,  sued  the  bank  in  assump- 
sit for  money  had  and  received,  and  on  the  trial  produced  his 
bank  book,  showing  a  deposit  of  eight  hundred  dollars,  made  on 
the  7th  of  October,  1825.  He  also  produced  a  witness,  who 
Kworc  that  he,  the  witness,  made  that  identical  deposit  for  the 
plaintiff  on  that  day. 

The  defence  was,  that  the  money  deposited  was  in  fact  eighty 
dollars,  and  that  the  figures  "  800  "  had  been  set  down  in  Boraef 's 
book  by  mistake,  instead  of  "  80,"  by  Henry  Meyers,  a  clerk 
in  the  bank,  who  received  the  deposit.  To  support  this  defence, 
Meyers  himself  was  offered  as  a  witness.  A  book  belonging  to 
the  bank  was  also  offered,  in  which,  as  was  said,  he,  Meyers, 
had  at  the  time  of  the  deposit  entered  it  as  of  eighty  dollars, 
previous  to  his  entry  in  the  book  of  the  plaintiff.  Boraef,  the 
plaintiff,  did  not  object  to  Meyers  as  a  witness ;  but  he  objected 
to  the  book  showing  the  entry  of  eighty  dollars.  The  court 
rejected  the  book.  INIeyers,  without  it,  could  not  undertake  to 
swear  at  all. 

In  deciding  the  question  whether  this  rejection  was  error,  the 
cases  cited  to  show  how  far  the  books  of  a  corporation  are 
evidence  in  dispute  with  their  customers,  ap])ear  to  have  no 
very  stroug  application.  If  the  book  belonging  to  Boraef,  the 
plaintiff,  had  been  lost  or  w'ithheld,  no  doubt  the  bank  entries 
might  he  prima  facie  sufficient. 

If  the  bank  relied  on  its  own  book,  not  only  as  the  original 
entry,  but  as  superior  and  controlling  and  correcting  the  book 
of  Boraef,  it  asked  too  much;  for  the  main  evidence  of  the  con- 
tract was  the  document  delivered  to  Boraef.  He  could  not  over- 
see the  bank  books,  nor  had  he  any  business  to  examine  them. 
He  never  intended  to  rely  upon  their  entries,  but  held  in  his 
own  hand  his  own  voucher  equal  to  a  receipt.  Therefore  the 
book  offered  by  the  bank  would  have  been  a  sort  of  evidence 
r*iKF;"|  q^^ite  inconclusive,  as  I  *take  it,  and  worth  very  little, 
L  '  -■  if  unsupported  ;  yet  it  by  no  means  follows,  that  it  was 
not  evidence  at  all.  A  mistake  was  alleged,  and  it  appears  that 
a  mistake,  somewhere,  existed.  The  bank  might  have  had  other 
evidence.  The  book  ought  to  have  gone  with  the  plaintiff's  book, 
and  with  Meyers'  testimony,  to  the  jury,  as  containing  one  of 
the  entries  made  by  him  at  the  time,  with  his  explanations,  if 
he  had  any  to  offer. 

The  opinion  of  the  court  in  Henderson  v.  Jones,  10  Serg.  & 
Rawle,  322,  cites  many  cases  where  the  previous  declarations  of 
a  witness  have  been  held  to  be  evidence  to  support  his  testimony. 
It  is  assumed  that  Meyers  was  able  to  swear,  if  permitted,  that 
his  entrv  in  the  bank  book  was  true,  to  the  best  of  his  kuowl- 
.170 


/an.  24, 1820.]       OF   PENXSYLYAXIA.  ]55 

[The  Farmers'  and  Meclianics'  Bank  v.  Boraef.] 

edge  and  belief:  otherwise,  most  clearly,  the  book  is  not  evi- 
dence for  any  purpose. 

Judgment  reversed,  and  a  'venire  facias  de  novo  awarded. 

Cited  by  Counsel,  12  II.  359 ;  IG.  337  ;  4  Wr.  203 ;  10  W.  N.  C.  446. 
Followed  1  C.  292. 


[Philadelphia,  January  24,  1829.] 

Streaper  against  Fisher  and  Others. 

IN   ERROR. 

The  purchaser  at  a  sheriff's  sale,  of  a  ground  rent,  may  maintain  an  action  of 
covenant  for  tiie  rent  against  the  owner  of  the  ground  out  of  wliich  it  issues. 

Generally,  tlie  levy  on  real  estate  will  control  all  the  subsequent  proceedings. 
Tlierefore,  if  the  levy  be  upon  a  rent  charge  and  tlie  venditioni  expomts,  alias 
rendifioni  exponai^,  &c.,  connnand  the  sheriff  to  sell  the  rent  charge,  but  he  ad- 
vertise the  lot  upon  wliich  it  is  charged,  and  make  a  deed  to  the  purcluiser, 
purjiorting  to  convey  the  lot,  and  no  apjjlication  be  made  to  set  aside  the  sale 
at  the  i)roper  time,  by  those  authorized  to  object  to  it,  the  rent  charge  jjasses 
to  tlie  purchaser. 

The  pendency  of  an  ejectment  for  a  lot  of  ground  out  of  wliicli  a  rent  charge 
issues,  brougiit  by  the  executors  of  a  testator,  will  not  prevent  a  recovery  in  an 
action  of  covenant,  for  the  rent,  by  his  devisees. 

On  the  return  of  a  writ  of  error  to  the  District  Court  for  the 
city  and  county  of  Philadetphia,  it  appeared  from  the  record, 
that  this  was  an  action  of  covenant  brougiit  by  Kedwood  Fisher , 
and  others,  devisees  of  Miers  Fisher,  deceased,  ^^•ho  sued  as 
assignees  of  Cliarles  Hurst,  to  recover  three  years'  arrears  of 
ground  rent,  reserved  in  a  deed  dated  the  9tli  of  March,  1785, 
executed  by  the  said  Charles  Hurst  to  Chai'les  W.  Peale,  under 
whom  the  defendant  below,  Kichard  Streaper,  derived  title  to 
the  lot  of  ground  out  of  which  the  ground  rent  issued. 

On  the  trial  in  the  District  Court,  the  jury  by  agreement  of 
the  parties,  found  a  verdict  for  the  plaintiffs  for  one  hundred  and 
seventy-two  dollars  and  fifty-four  cents,  subject  to  the  o])inion 
of  the  court  upon  the  facts  specially  found  by  the  jury.  In  sub- 
stance they  were  as  follows  : — 

*On  the  9th  of  March,  1785,  Charles  Hurst  conveyed  r,^^  pp-, 
to  Charles  W.  Peale  a  lot  of  ground  in  the  city  of  Phil-  L  -I 
adelphia,  j)articularly  describing  it,  subject  to  the  yearly  rent 
or  sum  of  fifty-three  dollars  thirty-three  cents,  payable  annually 
on  the  9th  of  March,  forever ;  and  Peale  covenanted  to  ])ay  the 
said  rent.  At  July  Term,  1787,  the  executors  of  AV^illiam 
Brownjohn  obtained  a  judgment  against  Charles  Hurst,  on 
which  several  executions  issued,  and  parts  of  the  estate  of 
Charles  Hurst  were  sold.     On  an  alias  fieri  facias  pro  residuo, 

171 


156  SUPREME  COURT  [Philadelphia, 

[Streaper  v.  Fisher  and  others.] 

a  levy  was  made,  among  other  things,  on  No.  20,  (the  items 
levied  upon  having  been  numbered  in  consequence  of  being 
numerous,)  "One  yearly  rent  charge  of  fifty-three  dollars  and 
thirty-three  cents,  issuing  and  payable  out  of  a  lot,  (describing 
it  exactly,)  in  the  possession  of  C.  W.  Peale."  Several  writs  of 
venditioni  exponas  issued,  upon  one  of  which  the  property  was 
struck  off  to  Timothy  Hurst ;  but  the  sale  was  set  aside.  A 
phirles  venditioni  exponas  issued  to  March  Term,  1799,  com- 
manding the  sheriff  to  sell  inter  alia,  No.  20,  "  One  yearly  rent 
charge,"  &c.,  describing  it,  as  in  the  levy.  To  this  writ  the 
sheriff  returned,  that  he  had  sold  the  lot  No.  20,  out  of  which 
the  rent  issued,  to  Anthony  Morris  and  Miers  Fisher,  for  five 
hundred  dollars.  On  the  26th  of  March,  1799,  the  sheriff  made 
a  deed  to  the  said  Anthony  Morris  and  Miers  Fisher,  in  which 
he  recited  the  fieri  facias,  the  levy  and  the  sev^eral  writs  of 
venditioni  exponas,  and  then  proceeded  to  state,  that  in  pur- 
suance of  the  writ  of  plurles  venditioni  exponas,  he  had  sold 
to  Anthony  ISIorris  and  Miers  Fisher,  a  lot  of  ground  and  stable 
thereon,  No.  20,  containing  twenty  feet  in  breadth,  on  the  west 
side  of  Third  Street.  He  then  conveyed  to  them  the  said  lot, 
(describing  it  particularly,)  "  together  with  all  and  singular  the 
rights,  liberties,  privileges,  hereditaments,  and  appurtenances 
whatsoever,  to  the  said  hereby  granted  premises  belonging,  and 
the  reversions  and  remainders,  rents,  issues,  and  profits 
thereof." 

Anthony  Morris  afterwards  conveyed  his  share  to  Mie/s 
Fisher. 

On  the  7th  of  October,  1808,  Charles  W.  Peale  sold  the  lot 
to  John  Cameron,  subject  to  the  ground  rent.  On  the  30th  of 
September,  1811,  Cameron  sold  it  to  AVilliam  H.  Smith,  subject 
to  the  ground  rent ;  and  oh  the  13th  of  February,  1817,  Smith 
sold  it  to  Richard  Streaper,  the  defendant  below,  subject  to  the 
said  ground  rent  of  fifty-three  dollars  and  thirty-three  cents, 
payable  to  Charles  Hurst,  his  heirs  and  assigns. 

Two  letters  from  Miers  Fisher  to  Charles  W.  Peale,  dated  in 
1812  and  1813,  were  produced,  in  which  he  stated  that  the  prop- 
erty had  been  advertised  as  a  lot,  &c.,  and  not  as  a  ground 
rent  issuing  out  of  a  lot ;  and  that  he  had  purchased,  supposing 
he  was  buying  the  lot  itself,  and  not  the  rent  charge.  He  then 
settled  with  the  tenants  for  the  rent  in  arrear,  and  received  the 
rents  from  that  time  until  his  death  in  1819.  After  his  death, 
the  defendant,  who  had  until  that  period  paid  the  rent,  being 
induced  to  doubt  Fisher's  title  to  it,  refused  to  make  further 
r*i  5^71  payments.  In  the  year  1823,  the  executors  *of 
L  1  Miers  Fisher,  under  a  clause  in  his  will  empowering 
them  to  sell  if  necessary,  brought  an  ejectment  to  recover  the 
172 


/an.  24, 1829.]       OF   PENNSYLVANIA.  157 

''  £Streaper  v.  Fisher  and  others.] 

lot,  or  to  enforce  payment  of  the  rent.  To  November  Term,  1824, 
while  the  ejectment  was  pending,  the  plaintiffs,  to  whom  this 
property  was  devised  by  Miers  Fisher,  brought  this  action. 

Upon  the  facts  thus  found  by  the  jury,  the  District  Court 
gave  judgment  for  the  plaintiffs  below ;  upon  which  the  defend- 
ant's counsel  excepted  to  their  opinion,  and  removed  the  cause 
by  writ  of  error  to  this  court. 

J.  R.  Hopkins,  for  the  plaintiff  in  error,  contended,  that  by 
virtue  of  the  sheriff's  deed  of  the  26th  of  March,  1799,  the 
purchaser  acquired  no  title,  either  to  the  ground  rent  or  to  the 
lot  upon  which  it  was  charged.  The  sale  was  illegal  and  void  ; 
1.  Because  there  was  no  levy  upon  the  property  sold,  and  the 
sheriff  cannot  sell  what  he  has  not  levied  upon.  4  Yeates,  1 14; 
2  Binu.  80,  92. 

2.  Because  no  inquisition  w^as  held,  under  the  act  of  assem- 
bly, to  ascertain  whether  the  rents,  issues,  and  profits  would 
pay  the  debt  in  seven  years.  Act  of  1705,  sect.  2;  1  Sm. 
L.  57. 

3.  Because  the  sheriff  does  not  appear  to  have  had  any  au- 
thority to  sell  what  he  did  sell.  By  the  venditioni  exponas,  he 
was  commanded  to  sell  the  rent  charge ;  instead  of  which  he  ad- 
vertised and  sold  the  ground  out  of  which  it  issued,  for  which 
alone  the  deed  was  made.  It  was  never  supposed  by  the  pur- 
chasers that  the  ground  rent  passed  by  this  deed.  They  always 
considered  themselves  as  having  purchased  the  lot.  If  they 
acquired  no  title  to  the  land,  either  in  consequence  of  irregu- 
larity in  the  proceedings  or  because  it  had  been  sold  to  Peale, 
before  Browujohn's  judgment  was  obtained,  it  was  their  misfor- 
tune. Like  all  other  purchasers  at  sheriff's  sale,  they  come 
within  the  operation  of  the  rule  of  caveat,  emptor ;  Freedly  v. 
Sheet.s,  9  Serg.  &  Rawle,  156.  There  is  nothing  in  the  deed 
de-scriptive  of  the  rent  charge,  and  consequently  it  did  not 
pass.  If  there  be  error  in  the  description  of  the  thing  intended 
to  be  granted,  nothing  will  pass.  1  Com.  Dig.  Fait.  286,  note. 
In  a  sheriff''s  deed  nothing  passes  under  the  general  clause.  13 
Johns.  Rep.  537,  551.  It  is  void  for  uncertainty.  Id.  97. 
Under  the  general  grant,  therefore,  of  all  the  rights,  liberties, 
&c.,  the  rent  did  not  pass.  It  would  not,  under  such  a  descrip- 
tion, in  any  deed ;  and  still  less  in  a  sheriff's  deed,  under 
which  the  purchaser  takes  nothing,  but  what  is  fully  and  accu- 
rately described. 

The  plaintiff's  claim  is  founded  upon  a  covenant  supposed  to 
run  with  the  land.  An  assignee  is  undoubtedly  bound  by  a 
covenant  which  runs  with  the  land  ;  but  for  this  ])urpose,  there 
must  be  privity  of  estate  between  the  parties.     1  H.  Bl.  Rep. 

173 


157  SUPREME  COURT  [Pkiladelphia, 

[Streaper  v.  Fisher  and  others.] 

562 ;  3  Sulk.  4.  •  In  this  case  there  was  no  privity  of  estate. 
The  plaintiff's  testator  was  never  seised  of  the  rent.  He  never 
even  claimed  it  until  the  year  1812,  although  the  sheritrs  deed 
bore  date  in  1799.  If  it  be  said  that  the  defendant  below  recog- 
nized his  title  by  paying  him  the  rent,  the  answer  is,  that 
p^.f-^-j  he  was  misled  by  Mr.  Fisher's  declaration  *that  he 
•-  J  was  the  assignee  of  Charles  Hurst,  and  that  his  title 
had  been  confirmed  by  the  court.  The  payments  were  made 
under  a  misapprehension  of  the  facts,  and  therefore  cannot 
affec;t  him.  Phill.  Ev.  479,  480.  Payment  of  rent  is  evidence 
of  seisin,  only  where  the  party  receiving  it  has  a  right  of  entry. 
4  Davis's  Abt.  29.  Privity  of  interest,  and  not  the  payment 
of  rent,  is  the  true  test  of  who  is  the  landlord.  Coleman's 
Cases,  50. 

The  defendants  in  error  have  an  ejectment  pending  for  the 
lot  itself,  and,  therefore,  cannot  support  this  action  of  covenant 
for  the  rent  charged  upon  the  lot.  The  parties  to  both  these 
suits  are  the  same ;  for  although  in  the  ejectment  the  executors 
of  Miers  Fisher  are  plaintiffs,  they  are  by  his  will  the  trustees 
of  the  devisees.  A  man  cannot  have  two  writs  for  the  same 
cause  of  action  at  the  same  time.  1  Bac.  Ab.  25.  The  second 
must  abate.  Id.  22.  This  suit,  therefore,  having  been  instituted 
after  the  ejectment,  cannot  be  supported. 

Dwight  and  T.  Sergeant,  (with  whom  was  Price),  for  the 
defendants  in  error. — In  the  decision  of  this  case,  two  questions 
are  involved.  1st.  Can  a  purchaser  at  sheriff's  sale,  to  whom 
a  ground  rent  has  been  conveyed  by  the  sheriff's  deed,  maintain 
an  action  of  covenant  against  the  assignee  of  the  land  out  of 
which  the  rent  issues  ? 

2d.  Was  Miers  Fisher  such  a  purchaser;  or,  in  other 
words,  did  he  acquire  a  title  to  the  ground  rent  in  question 
by  virtue  of  the  levy ;  venditioni  exponas,  sale,  and  sheriff's 
deed? 

1st.  The  deed  from  Hurst  to  Peale  contains  a  covenant  between 
the  grantor,  his  heirs  and  assigns,  and  the  grantee,  his  heirs  and 
assigns,  for  the  payment  of  the  rent  by  the  latter  to  the  former. 
A  purchaser  at  sheriff's  sale  is  an  assignee  in  law,  and  becomes 
a  party  to  the  covenant.  By  the  law  of  Pennsylvania,  such  a 
purchaser  becomes  invested  with  all  the  legal  rights  of  the  de- 
fendant in  the  execution,  discharged  of  all  secret  trusts.  Smith 
V.  Painter,  5  Serg.  &  Rawle,  223.  If  the  debt  be  paid  before 
execution,  the  purchaser's  title  is  not  affected  by  that  circum- 
stance. Samms  v.  Alexander,  3  Yeates,  268.  An  assignee 
by  act  of  law  has  the  benefit  of  all  covenants  express  or  im- 
plied, which  run  with  the  land,  though  such  assignee  be  not 
174 


Jan.  24,  1829.]       OF  PENNSYLVANIA.  158 

[Slieaper  v.  Fisher  and  others.] 

named ;  and  a  coveiumt  to  pay  rent  runs  with  the  land.  Sliep. 
Touch.  Ch.  7,  p.  o72,  574;  5  Coke,  17;  Appowel  v.  Mon- 
noux,  Moore's  Kep.  case  241,  p.  97  ;  Hurst  v.  Lithgrow,  2 
Yeates,  25. 

2d.  In  determining  whether  Fisher  was  an  assignee  of  the 
rent,  his  character  is  to  be  regarded,  first  at  law,  and  secondly 
in  equity. 

1.  At  law.  The  first  step  in  his  title  was  a  fieri  facias, 
levied  upon  the  ground  rent  in  question.  The  second,  a  ven- 
ditioni exponas  for  the  sale  of  the  samo  ground  rent.  The 
third,  an  alias  venditioni  exponas,  having  the  same  object ; 
and  the  fourth,  a  pluries  venditioni  exponas,  commanding  the 
sheritf  to  sell  the*rent;  under  which  he  sold  the  lot  r*-i -q"| 
by  the  same  description  as  was  contained  in  the  levy.  •-  '  J 
That  his  official  intention  was  to  sell  the  rent  cliarge,  is  deducible 
from  the  authority  under  which  he  acted.  He  recites  the  levy 
and  all  the  proceedings  in  relation  to  the  rent,  and  declares  that 
he  sold  in  ])ursuance  of  them  ;  and  though  the  deed  describes 
the  lot,  yet  it  must  be  taken  in  connection  with  the  proceedings 
upon  which  it  was  founded,  and  be  considered  as  a  conveyance 
of  the  thing  intended  to  be  sold.  The  whole  of  the  proceedings 
constitute  one  conveyance.  But  the  instrument  itself  contains 
enough  to  pass  the  rent.  It  conveys  lot  No.  20,  with  all  the 
rents,  &c.  The  conveyance  of  the  land,  embraces  all  minor  in- 
terests in  it.  The  settled  rules  relative  to  the  construction  of 
deeds,  will  serve  as  guides  to  a  decision  of  this  case.  A  deed, 
and  particularly  a  deed  poll,  must  be  construed  most  strongly 
against  the  grantor;  and  if  it  cannot  operate  in  the  manner  in- 
tended by  the  parties,  it  will  be  construed  so  that  it  shall 
operate  in  some  other  manner.  Spencer,  C.  J.,  in  Jackson  v. 
Blodget,  16  Johns.  178;  Shep.  Touch.  82,  83  ;  Co.  Litt.  302.  A 
deed  shall  be  so  interpreted,  that  it  shall,  if  possible,  take  effect, 
id  res  magis  valeat  qaam  pereat.  Co.  Litt.  183,  186  ;  2  Saund. 
96,  b,  note  1.  A  deed  is  never  void,  if  by  any  construction  it 
can  be  made  good.  Thus  a  grant  at  common  law,  or  a  bargain 
and  sale,  may  operate  as  a  covenant  to  stand  seized.  A  feoff- 
ment will  operate  in  the  same  manner.  Where  the  words  of  a 
deed  mav  be  applied  to  any  intent,  it  shall  not  be  void.  Shep. 
Touch.  Ch.  5,  sect.  2;  Exposition  of  I>eeds,  Plowd.  160. 
Another  rule  is,  that  where  a  man  grants  more  than  he  has,  all 
that  he  has  shall  pass.  Shep.  Touch.  Ch.  3,  sect.  2,  rule  58. 
If  these  rules  be  applied  to  the  facts  of  the  case,  the  sale  will  be 
found  good.  AVhere  there  is  enough  in  a  deed  to  designate  what 
is  meant  to  be  conveyed,  the  addition  of  circumstances,  false  or 
mistaken,  will  not  vitiate  it.  Jackson  v.  Clark,  7  Johns.  217, 
224.     The  case  of  Jackson  v.  Loomis,  18  Johns.  81,  in  which 

175 


159  SUPREME   COURT  [Philadelphm, 

[Streaper  v.  Fisher  and  others.] 

the  words  "Lot  No.  51,"  were  rejected  as  surplusage,  closely 
resembles  this,  in  which  the  mistake  was,  the  omission  to  insert 
the  words  "ground  rent  issuing  out  ot,"  the  lot  which  was 
properly  described. 

The  words  of  the  instrument  in  themselves  pass  the  rent.  If 
A.  gmnts  all  his  lands  and  tenements  in  D.,  and  has  nothing 
there  but  a  rent  charge,  that  will  pass.  2  Roll.  Ab.  57  ;  Grant : 
T.  i).  A.  devises  to  B.  all  his  lands  in  D.  and.  has  notliing  there 
but  tithes ;  the  tithes  pass.  -1  Roll.  Ab.  164  ;  Devise,  N.  4.  It 
is  settled  in  Pennsylvania,  that  the  term  "  land"  includes  every 
secondary  and  derivative  interest  connected  with  it,  such  as  a 
rent  charge.  Shaupe  v.  Shaupe,  12  Serg.  &  Rawle,  12.  If  a 
sheriff's  deed  purport  to  convey  a  fee,  and  the  defendant  had 
only  an  estate  for  life,  that  passes.  1  Cowden's  Rep.  470.  So 
if  it  purport  to  convey  a  share  of  a  joint-tenant  greater  than 
he  had,  what  he  had  will  pass.  14  Mass.  Rep.  404;  4  Yeates, 
111. 

2.  As  to  equity.  The  levy  and  writs  were  the  power  under 
r*irm  *  which  the  sheriff  acted.  The  deed  was  the  formal  ex- 
L  J  ecution  of  that  power ;  which  having  been  defectively 
performed,  equity  will  aid  it.  Madd.  Ch.  47;  Sugden  on  Vend. 
523.  The  purchasers  having  paid  a  valuable  consideration,  a 
court  of  equity  would  correct  the  mistake  in  the  conveyance ; 
for  the  consideration  is  the  substance  of  the  conveyance,  and  all 
the  rest  mere  form.  Powel  on  Powers,  161,  163,  165.  The 
debtor  has  received  all  the  benefit  of  the  sale ;  has  assented  to 
the  transfer  of  his  interest ;  the  purchase-money  has  gone  to 
pay  his  debts ;  he  has  never  moved  to  set  aside  the  sale,  and  it 
cannot  now  be  disturbed.  A  sheriff's  sale  of  land  on  a  judgment 
against  an  executor  de  son  tort,  is  void,  yet  those  who  stand  by 
and  encourage  it,  are  bound  by  it.  Nass  v.  Vanswearingen,  10 
Serg.  &  Rawle,  144.  So  if  property  be  not  included  in  a  levy, 
if  the  debtor  represent  it  as  included,  the  purchaser  will  hold  it. 
Buchanan  v.  Moore,  13  Serg.  &  Rawle,  304,  306.  If  a  party 
having  title  stand  by  and  see  the  property  sold  as  another's,  he 
cannot  afterwards  set  up  his  own  title.  Covert  v.  Irwin,  3  Serg. 
&  Rawle,  283.  Hurst,  therefore,  and  all  those  who  claim  under 
him,  are  conclusively  estopped  to  deny  the  plaintiff's  title.  Even 
if  the  mistake  could  have  been  corrected  before  the  acknowledg- 
ment of  the  sheriff's  deed,  it  is  too  late  now,  after  the  lapse  of 
twenty  years,  which  cures  all  irregularities  injudicial  proceedings. 
Thompson  v.  Skinner,  7  Johns.  Rep.  556. 

As  to  the  objection  founded  upon  the  pendency  of  the  eject- 
ment for  the  lot  itself,  it  is  answered  by  saying,  that  it  is  not 
between  the  parties  to  this  suit.  The  executors  of  Miers  Fisher, 
and  not  his  devisees,  are  the  plaintiffs.  If,  too,  there  be  any 
176 


Jbn.  24, 1829.J       OF  PENNSYLVANIA.  160 

[Streaper  v.  Fisher  and  others.] 

thing  in  the  objection,  it  sliould  have  been  pleaded  in  abate- 
ment. 1  Chitty  PI.  443 ;  Percival  v.  Hicky,  18  Jolms.  257. 
Besides,  it  is  only  one  of  three  concurrent  remedies,  distress, 
covenant,  and  re-entry.  Bantleon  v.  Smith,  2  Binn.  146,  153 ; 
Chipman  v.  Martin,  13  Johns.  244. 

P.  A.  Browne,  in  reply. — A  stranger  cannot  sue  on  a  cove- 
nant in  a  deed.  To  support  an  action,  the  plaintiff  must  be  a 
party  to  the  instrument,  unless  he  be  an  assignee  suing  upon  a 
covenant  running  with  the  land.  But  he  must,  in  that  case,  be 
an  assignee  in  the  legal  acceptation  of  the  term.  Even  where  a 
party  comes  in  by  act  of  law,  he  is  not  necessarily  such  an  as- 
signee. 2  Bac.  Ab.  75,  Govt.  E.  The  rules  of  construction 
relied  upon  in  the  opposite  argument  do  not  apply  to  a  case  like 
this.  They  refer  entirely  to  sales  between  parties,  and  do  not 
apply  to  judicial  sales.  The  reason  of  the  rule  that  deeds  are 
to  be  taken  most  strongly  against  the  grantor,  does  not  exist  as 
to  the  deed  of  a  sheriff.  He  has  no  interest  in  the  property, 
and  no  motive  to  look  into  those  matters  which  concern  other 
grantors.  Is  it  to  be  construed  most  strongly  against  the  debtor? 
The  policy  of  Pennsylvania  has  been  to  protect  the  debtor ; 
hence  the  extension  of  the  property,  if  the  rents,  issues,  and 
profits,  will  pay  in  seven  years ;  hence  personal  property  must  be 
taken  into  execution  before  real,  and  the  mansion  house  sold 
last.  ^ 

*The  rule  that  if  a  deed  cannot  operate  in  one  way  [-*i/^-i-| 
it  shall  in  another,  is  likewise  confined  to  deeds  between  •-  ^ 
parties.  A  sheriff's  deed  cannot  operate  as  a  release  or  con- 
firmation. He  can  sell  only  in  the  manner  prescribed  by  law, 
and  his  deed  can  operate  only  as  a  grant,  because  the  law  only 
gives  him  power  to  grant.  The  cases  cited  against  us  are  not  in 
point.  In  that  in  18  Johns.  81,  there  was  a  mistake  in  calling 
the  property  No.  51,  instead  of  No.  50  ;  but  the  description  was 
so  perfect  without  the  number,  that  there  could  be  no  uncertainty 
about  it.  No  one  was  or  could  be  taken  by  surprise.  The  case 
in  14  Mass.  R.  404,  was  decided  on  the  principle,  that  no  one 
could  be  injured  by  sustaining  the  sale.  Besides,  the  descrip- 
tion was  full  and  correct,  and  though  the  deed  could  not  operate 
to  pass  the  whole  estate  it  purported  to  pass,  yet  it  was  held  to 
operate  to  the  extent  of  the  estate  the  party  had. 

The  pendency  of  the  ejectment  is  a  fatal  obstacle  to  the  plain- 
tiffs' recovery.  A  party  cannot  claim  in  inconsistent  rights.  He 
cannot  claim  both  the  rent  and  the  land.  It  is  not  the  case  of 
concurrent  remedies  for  the  same  thing ;  but  of  inconsistent  and 
contradictory  claims,  which  cannot  subsist  together.  It  was  not 
necessary  to  take  advantage  of  this  objection  by  a  plea  in  abate- 

voL.  I.— 12  177 


161  SUPREME  COURT  {PhiUidelphin, 

fStreaper  v.  Fisher  and  others.] 

ment.  It  may  be  pleaded  either  in  bar  or  in  abatement.  5  Bac. 
Ab  439,  Pleas  and  Pleading. 

Huston,  J.,  (after  stating  the  facts,)  delivered  the  opinion  of 
the  court. 

Several  objections  taken  to  the  })laintiffs'  recovery  were  very 
projxjrly  passetl  over  by  their  concluding  counsel. 

The  statute  32  Hen.  8,  is  reported  by  the  judges  to  extend  to 
this  state,  and,  in  fact,  has  been  always  in  use  here.  Soon  after 
its  passage  a  construction  was  put  on  it  which  has  not  Ix-en 
varied.  Collateral  covenants,  such  as  do  not  relate  to  or  dej)cnd 
on  the  land  demised,  are  not  within  it ;  but  covenants,  which 
touch  or  relate  to  the  land  demised,  run  with  the  laud,  and  bind 
the  assignee,  and  the  assignee  of  an  assignee,  the  assignee  of  an 
executor,  or  heir  or  devisee,  or  whoever  is  terretenant  of  the 
land  under  the  demise,  whether  coming  in  by  assignment  or  act 
of  law ;  and  the  lessor,  and  all  claiming  under  or  through  him, 
are  equally  bound,  and  equally  entitled  with  the  lessee,  and  tiio.'^e 
claiming  under  or  through  him.  He  to  whom  a  lease  for  years 
is  sold,  is  within  it.  5  Co.  162,  (the  whole  of  that  case);  Shep. 
Touch,  Ch.  7,  176,  179.  And  the  only  diiference  in  the 
liabilities  of  the  original  parties,  and  those  coming  after  them, 
is,  that  covenant  lies  generally  against  the  original  party  after 
his  interest  is  parted  with ;  assignees  are  generally  answerable 
for  breaches  within  their  own  time ;  and  when  the  books  say  no 
stranger  can  take  advantage  of  a  covenant,  if  by  covenant  is 
meant  a  covenant  real  respecting  land,  or  leases,  it  is  to  be  un- 
derstood that  whoever  is  privy  in  contract  or  in  tenure,  is  not 
a  stranger.  A  stranger  is  one  who  claims  under  another  title, 
adverse  or  paramount. 

r*ir91  *Another  objection  is  made,  on  account  of  the  dif- 
L  -J  ference  between  the  levy  and  the  deed.  This  diiference 
is  as  to  the  interest  of  C.  Hurst  in  the  lot;  not  as  to  the  descrip- 
tion of  the  lot,  in  which  that  interest  is.  The  lot  is  well  de- 
scribed ;  but  the  levy  is  on  a  rent  charge,  though  the  deed  con- 
veys the  land  itself,  or  purports  to  convey  it. 

What  passes  by  a  deed  from  the  grantor  to  a  grantee  has  been 
often  discussed,  and,  it  would  seem,  ought  to  be  considered  set- 
tle<l.  Courts  will  not,  if  it  can  be  avoided,  suffer  a  deed  to  be 
•  inoperative,  when  fairly  made,  and  on  good  and  legal  consider- 
ation;  and,  if  the  form  used  will  not  operate  as  the  i)arties 
intended,  it  shall  have  effect  in  some  other  way,  if  j)ossible. 
Thus  a  deed  intended  as  a  release,  may  take  effect  as  a  grant  of 
a  reversion,  an  attornment,  or  a  surrender  et  convcrso.  Shep- 
herd's Chap,  of  Exposition  of  Deeds,  and  2  Saunders,  94. 
Indeed,  it  has  been  very  properly  conceded,  that  if  Charles 
178 


Jan.  24,  1829.]      OF  PENNSYLVANIA.  162 

[Streaper  v.  Fisher  and  others.] 

Hurst,  after  selling  to  Peale,  reserving  this  rent  charge  and  a 
right  of  entry  to  enforce  it,  had  afterwards  sold  a  second  time, 
all  that  Hurst  could  sell,  viz.,  the  rent  charge  and  right  of  entry, 
would  have  passed.  But  it  is  contended,  that  such  is  not  the 
effect  of  a  judicial  sale  on  execution. 

A  rent  charge,  or  any  other  legal  or  equitable  interest  in 
lands,  may  in  this  state  be  sold  on  execution.  1  Yeates,  429 ; 
Shaupe  v.  Shaupe,  12  Serg.  &  Rawle,  12.  Generally,  the  levy 
will  control  all  the  subsequent  proceedings  ;  it  is  the  foundation 
on  which  all  is  built.  There  may  be  difficulty,  where  the  sale 
is  more  extensive  than  the  levy,  if  the  objection  is  by  the  pur- 
chaser, and  in  proper  time ;  for  he  may  be  affected.  So  there 
may  be  an  objection  by  the  defendant  in  the  execution,  if  the 
advertisement  does  not  conform  to  the  levy ;  but,  if  the  plain- 
tiff and  defendant  in  the  execution,  and  all  judgment  creditors 
acquiesce,  if  the  purchaser  does  not  object,  on  what  principle 
can  a  third  person  be  heard  at  the  end  of  thirty  years,  or  why 
does  he  complain  of  an  irregularity,  which  does  not,  and  cannot 
affect  him  ?  The  rent  charge  is  due.  The  heirs  of  Hurst  do 
not,  and  could  not  now  claim  it.  But  on  principle,  and  on 
authority,  the  sale  was  good  from  the  time  the  deed  was  made 
and  accepted.  Before,  or,  under  some  circumstances,  shortly 
after,  the  defendant  or  the  purchaser  might  have  objected. 
After  payment  of  the  money,  and  acquiescence,  neither  could. 
Where  the  sale  purports  to  convey  the  whole  interest  of  the 
defendant  in  the  execution,  any  and  every  interest  he  has  will 
pass ;  at  least,  where  it  is  not  greater  than  described  ;  and  even 
if  greater,  and  the  defendant  knew  of  the  sale  and  did  not  take 
exception,  and  have  his  interest  properly  described.  So  in  other 
states.     1  Conn.  Rep.  470 ;  14  Mass.  Rep.  404. 

The  whole  interest  of  Charles  Hurst  passed  by  this  sale  and 
deed,  and  the  plaintiffs  below  are  in  law  assignees  of  Charles 
Hurst,  and  can  support  this  suit. 

There  is  nothing  in  the  objection  of  another  suit  pending.  It 
is  not  by  the  same  parties;  nor,  so  far  as  we  see,  for  the  same 
object. 

Judgment  affirmed. 

Cited  by  Counsel,  3  Penn.  R.  462 ;  5  W.  475 ;  7  W.  55 ;  2  W.  &  S.  311 ;  3  W. 
&  S.  322 ;"  7  W.  &  S.  294  ;  2  Barr,  168  ;  3  Barr,  65  ;  2  J.  285 ;  4  II.  103  ;  11  H. 
163 ;  3  Wr.  40 ;  9  Wr.  479  ;  4  S.  303,  343 ;  11  S.  101 ;  21  S.  63 ;  11  W.  N.  C* 
101. 

Cited  bv  the  Court,  1  R.  329 ;  1  Wh.  351 ;  2  W.  &  S.  127 ;  10  Barr,  284 ; 
2H.  28;  2  Par.  163. 

In  Pennsylvania,  the  assignment  of  a  ground  rent  carries  with  it  the  right 
to  all  remedies  that  existed  between  the  original  parties:  Juvenal  v.  Patter- 
son. 10  Barr,  282.  Distress  is  not  an  incident  of  Pennsylvania  ground  rents: 
Wallace  v.  Ilarmstead,  8  Wr.  492 :  but  see  Kenege  r.  Elliott,  9  W.  25S.  Nor 
can  the  ground  rent  be  enforced  bv  an  ejectment :  Kenege  v.  Elliott,  9  W.  258. 

179 


162  SUPREME  COURT  [PhUadelphia, 

[Streaper  ».  Fi»her  and  others.] 

Covenant,  however,  will  lie  and  that  without  a  previous  demand :  Rover  r.  Ake, 
3  P.  &  W.  401 ;  and  it  matters  not  that  plaintifl"  is  the  assignee  of  but  an  undi- 
vided portion  of  the  rent:  (Jook  v.  Briglitly,  10  Wr.  439;  or  that  defendant  is 
the  assignee  of  but  part  of  the  land:  Weidner  v.  Foster,  2  P.  &  W.  23.  In 
Maule  V.  Weaver,  7  liarr,  329,  and  Irish  v.  Johnston,  1  J.  488,  it  was  decided 
that  a  grantee  under  a  deed  poll  could  not  be  sued  in  covenant.  This  would 
seem  to  have  overruled  the  law  of  Weidner  v.  Foster.  In  Hannen  i'.  Ewalt, 
6  H.  9,  these  later  cases  were  overruled,  and  the  right  to  sue  in  covenant  as- 
signees of  ground  rent  under  a  deed  poll  re-established  An  Act  of  Assembly 
had  been  just  passed  giving  this  right,  (Act  April  2-5th,  1850,)  but  this  de- 
cision was  made  without  referring  to  the  Act.  Under  this  Act  it  has  been 
held  that  the  sherifl''s  vendee  is  liable  in  coven"»nt.  Smith  v  Conrad,  11  W. 
N.  C.  100.  The  Act  June  12th,  1878,  has  again  changed  the  law,  and  an  as- 
signee of  land  subject  to  a  ground  rent  is  no  longer  personally  liable  for  the 
rent  unless  he  has  expressly  assumed  it.  This  Act  has  no  retroactive  force. 
Miller  v.  Kern,  7  W.  N.  C.  504  (C.  P.,  where  all  the  cases  are  discussed) ;  Smith 
V.  Conrad,  supra. 


r*163]  *[Philadelphia,  January  24, 1829.] 

Adliim  against  Yard. 

IN   ERROR. 

If,  on  the  trial  of  a  scire  facias  against  a  garnishee  in  a  foreign  attachment, 
the  plaintiff  read  the  answers  of  the  defendant  to  the  interrogatories  exhib- 
ited to  him  on  the  part  of  the  plaintiff,  he  may,  notwithstanding,  contradict 
those  answers,  by  showing  that  the  defendant  swore  differently  on  another 
occasion. 

Though  an  assignment  be  in  its  nature  calculated  to  delay  creditors,  and 
therefore  avoidable,  yet,  if  a  creditor  take  a  dividend  under  it,  he  cannot  after- 
wards question  its  validity. 

The  lapse  of  seventeen  years,  without  corroborating  circumstances,  is  too 
short  a  time  to  raise  a  legal  presumption,  that  the  objects  for  which  an  assign- 
ment w;is  made  for  the  benefit  of  creditors,  had  either  been  accomplished  or 
abandoned. 

Error  to  the  District  Court  for  the  city  and  county  of  Phila- 
delphia, in  a  scire  facias  against  the  defendant  in  error  as  gar- 
nishee in  a  foreign  attachment. 

A  writ  of  foreign  attachment,  at  the  suit  of  John  Adlum,  the 
plaintiff  in  error,  against  Edward  Stevens,  was  issued,  and  laid 
in  the  hands  of  James  Yard,  the  defendant  in  error. 

After  judgment  had  been  entered  in  the  attachment,  a  scire 
facias  was  issued  against  Yard,  as  garnishee,  and  several  sets 
of  interrogatories  filed  in  succession,  to  all  of  which  he  gave 
answers  upon  oath. 

When  the  trial  came  on  in  the  District  Court,  his  answers 
were  read  by  the  plaintiff's  counsel,  who  afterwards  offered  to 
read  the  final  examination  of  Yard,  before  commissioners  of 
180 


/an.  24, 1829.]       OF  PENNSYLVANIA.  163 

[Adlum  V.  Yard.] 

bankruptcy,  under  a  commission  which  issued  against  him  in 
the  year  1802  ;  in  order  to  show  a  contradiction  between  what 
he  then  swore  and  his  present  answers.  The  court  rejected  the 
evidence. 

The  defendant  then  gave  in  evidence,  a  general  assignment 
made  by  Stevens,  of  his  estate  and  effects,  on  the  17th  of  May, 
1802,  to  trustees,  for  the  benefit  of  his  creditors,  iu  the  follow- 
ing words : — 

"  Know  all  men  by  these  presents, — that  whereas  I,  Edward 
Stevens,  of  Philadelphia  county,  being  indebted  to  sundry  per- 
sons, in  divers  sums  of  money,  which  at  present  I  am  unable 
fully  to  pay  and  discharge,  and  being  desirous,  as  far  as  lies  in 
my  power,  to  satisfy  the  persons  to  whom  I  am  indebted,  I  do 
hereby  grant,  bargain,  sell,  assign,  and  set  over,  to  Samuel  M, 
Fox,  Matthias  Pierce,  and  Anthony  Morris,  all  my  estate, 
goods,  chattels,  debts,  and  property,  as  well  real  as  personal, 
of  which  the  scheflule  hereunto  annexed  contains  a  fair  and  true 
account,  to  them  the  said  S.  M.  Fox,  M.  Pierce,  and  Anthony 
Morris,  their  heirs,  executors,  administrators,  and  assigns  for- 
ever, upon  the  condition  following,  viz. :  That  all  moneys  which 
shall  arise  from  the  estate,  goods,  chattels,  debts,  and  property 
aforesaid,  shall  be  equally  divided,  in  proportion  to  their  re- 
spective demands,  among  my  said  creditors.  But  *  that  i-^^  ^^  .-i 
the  lands  mentioned  in  the  schedule  shall  not  be  sold,  ^  J 
until  after  the  expiration  of  three  years  from  this  date,  after 
which  it  shall  and  may  be  lawful,  to  and  for  the  said  S.  M.  Fox, 
M.  Pierce,  and  Anthony  Morris,  to  make  sale  of  the  said  lands, 
or  so  much  of  them  as  shall  be  sufficient  to  pay  and  discharge 
what  may  then  be  due  and  owing  from  me  to  my  said  creditors. 
And,  in  case  the  estate  and  effects  of  James  Yard  shall,  before 
the  expiration  of  the  said  term  of  three  years,  prove  sufficient 
to  discharge  the  whole  of  his  debts  for  which  I  am  responsible, 
then  the  above  mentioned  estate,  goods,  debts,  chattels,  and 
property,  or  so  much  thereof  as  shall  at  that  time  remain  undi- 
vided, shall  be  restored  to  me,  in  the  same  manner  as  I  now 
hold  them.  Witness  my  hand  and  seal  the  16th  of  Mav, 
1802. 

(Signed)  "  Edward  Steveis's.  (L.  S.) 

"  Sealed  and  delivered  in  presence  of 
"James  Latimer, 
"  James  A.  Wood." 

"  List  of  ±he  debts  of  Edward  Stevens,  by  his  indorsements 
for  James  Yard : — 

181 


164  SUPREME  COURT  [Philcu-ldphia, 

[Adium  V.  Yard.] 
Pratt,  Son  &  Kiutzing,  secured  by  mortgage,    f  33,83G  64 


William  Read  &  Co, 

Bank  of  United  States,  on  seven  notes. 
Bank  of  North  America,  on  seven  ditto. 
Bank  of  Pennsylvania,  on  two  ditto,    . 
Donath  &  Co.,  on  five  ditto, 


32,015  36 
17,400 
10,000 
4,850 
22,127 


86,392  36 
Stephen  Girard,      6,000 


$1)2,392  36 


"Besides  the  above  debts,  I  have  unsettled  accounts  with 
Thomas  Knox,  William  Gordon,  Monsieur  de  Rette,  and  James 
Yard,  but  do  not  know  at  present  on  which  side  the  balance  lies. 
I  am,  however,  confident  that  it  cannot  be  considerable  either  for 
or  against  me.  (Signed)  "  Edward  Stevens." 

"Schedule  of  the  property  and  efiects  of  Edward  Stevens  : — 

Debt  from  the  United  States, $20,000 

Lot  in  Chestnut  Street, 3,333 

Interest  in  ship  Asia  and  brig  Dolly,     ....     15,000 
Lands  bought  of  John  Adlum,  subject  to  in- 
cumbrances, as  stated, 20,000 

Household    furniture,    professional    and    other 

books. 

One-sixth  of  217,000  acres  of  land  on  the  West 

Branch  of  the  River  Susquehannah,  being 

r*165l      *^^lf  of  the  third  part  of  the  said  tract 

L         -•      conveyed  by  George  Eddy  and  Esther  liis 

wife,   to   Edward    Stevens,   by   indenture, 

dated  the  11th  February,  1795, $27,000 

"  N.  B. — The  last  mentioned  land  is  really  the  property  of 
Mrs.  Stevens :  but,  as  doubts  have  arisen  whether  the  proofs 
thereof  are  conclusive,  I  do  hereby  declare,  that  I  assign  and 
set  over  to  the  assignees  of  my  other  eifects,  all  the  right,  title, 
claim,  interest,  and  demand,  which  it  shall  be  proven  that  J 
have  in  and  to  the  said  land,  to  hold  on  the  conditions  men- 
tioned in  the  foregoing  assignment. 

"  The  remaining  one-sixth  part  of  the  land  is  the  property  of 
Ernest  Frederick  Walterstorff,  of  Copenhagen,  Denmark,  of 
which  the  proofs  are  full  and  conclusive. 

(Signed)  "Edward  Stevens." 

"  Recorded  Feb.  21, 1803." 
182 


Jan.  24,  1829.]     OF  PENNSYLVANIA.  165 

[Adlum  V.  Yard.] 

The  defendant  also  ^ave  in  evidence  payments  made  by  the 
assignees  to  the  creditors  of  Stevens,  during  the  year  1804, 
amounting  to  $23,000,  and  produced  the  receipts  of  Adlum  for 
money  paid  to  him  by  the  assignees  to  the  amount  of  $6,222. 
Evidence  of  other  facts  was  also  given  on  the  trial,  which  it  is 
at  present  unnecessary  to  notice. 

The  plaintiff's  counsel  proved  the  payment  of  taxes,  by  Yard, 
on  part  of  the  lands  included  in  the  assignment ;  and  con- 
tended, that  the  assignment  was  in  itself  void,  or,  if  not  so, 
that  from  the  length  of  time  that  had  elapsed  without  anything 
having  been  done  under  it,  the  object  of  the  trust  must  be  pre- 
sumed to  have  been  either  accomplished  or  abandoned. 

The  court  charged  the  jury  in  favour  of  the  defendant,  and  a 
bill  of  exceptions  was  taken,  as  well  to  the  overruling  of  the 
evidence,  as  to  the  charge  to  the  jury. 

Chew  and  Mawle,  for  the  plaintiff  in  error,  contended,  that 
the  examination  of  Yard  before  the  commissioners  of  bank- 
ruptcy ought  to  have  been  admitted.  It  was  offered,  to  show  that 
Yard  was  not  entitled  to  certain  credits,  asserted  in  his  answers 
to  be  due  to  him  for  advances  made  by  him  before  his  bank- 
ruptcy. It  was  objected  to  by  the  defendant's  counsel ;  the 
court  sustained  the  objection,  and  declared  that  no  evidence 
should  be  given  to  the  jury  to  contradict  the  answers  of  the 
garnishee. 

The  propriety  of  this  decision  may  in  some  measure  depend 
on  the  character  in  which  the  garnishee  is  to  be  viewed. 

If  merely  as  a  witness  at  common  law,  the  rule  is  well  set- 
tled, that  he  who  calls  a  witness  shall  not  be  admitted  afterwards 
to  impeach  his  general  character ;  but  it  goes  no  further.  If 
the  witness  is  mistaken  as  to  a  fact,  it  is  competent  for  him  who 
calls  him  to  correct  the  mistake  by  means  of  another.  But  a 
garnishee  in  a  foreign  attachment  stands  on  different  grounds. 
He  is  not  so  much  *a  witness  as  a  defendant  answering  ^^^nn■^ 
to  a  bill  of  discovery  and  relief;  as  to  whom  the  rule  '-  -' 
is,  that  the  whole  of  his  answer  must  indeed  be  read,  but  it  is 
not  all  to  be  alike  believed.  1  Phill.  Ev.  360.  Till  the  act  of 
the  28th  of  September,  1789,  the  process  of  foreign  attach- 
ment often  proved  fruitless  from  the  difficulty  of  proving  effects 
in  the  hands  of  the  garnishee.  By  that  act,  he  was  justly 
placed  on  the  footing  of  a  mere  stakeholder.  By  that  act,  he 
is  required  to  give,  on  oath  or  affirmation,  "  full,  direct,  and 
true  answers  to  all  and  singular  the  interrogatories  exhibited  on 
the  part  of  the  plaintiff."  If  the  plaintiff  is  satisfied  that  his 
answers  are  "  full,  direct,  and  true,"  he  may  take  judgment  for 
wliat  is  so  acknowledged  to  be  in  his  hands  without  a  trial.     If 

183 


166  SUPREME  COURT  [PhUadclphia, 

[Adlum  V.  Yard.] 

his  answers  are  otherwise  than  full,  direct,  and  true,  the  act 
i>r(>cee<ls  to  Siiy,  that  the  court  may  award  judgment  against 
him  for  the  whole  of  the  plaintiff's  demand.  But  how  is  it  to 
be  ascertained  whether  the  answers  are  or  are  not  full,  direct, 
and  true,  except  by  counter  evidence?  The  answers  must  first 
be  read,  or  it  cannot  be  decided  whether  they  are  such  as  the 
law  requires.  So  that,  instea<l  of  the  plaintiff's  being  estopped 
by  reading  them,  it  is  the  very  course  that  he  must  take.  The 
next  step  is,  to  ascertain  what  may  be  the  nature  of  that  coun- 
ter evidence.  Must  it  be  the  testimony  of  other  witnesses,  or 
may  we  falsify  the  answers  in  part  or  in  whole  by  showing  the 
contrary  of  what  is  now  asserted,  from  the  garnishee's  own 
acknowledgments  or  acts  on  another  occasion?  But,  accord- 
ing to  the  view  taken  by  the  court  below,  we  are  precluded  from 
showing  in  any  way  that  the  answers  are  not  what  they  ought 
to  be ;  and,  if  this  be  law,  any  answers  of  a  garnishee  must  be 
received  as  full,  direct,  and  true.  There  has  been  as  yet  no 
decision  in  this  court  on  the  construction  of  the  act  of  assembly 
of  1789  ;  not  at  least  as  to  this  point;  but  the  case  of  Cowden 
V,  Reynolds,  12  Serg.  &  Rawle,  281,  is  strongly  apposite.  They 
also  cited  Walker  v.  Wallace,  2  Dall.  113. 

2.  The  assignment  executed  by  Stevens  in  1802,  was  in  itself 
void  ;  and,  whether  void  or  not,  it  has  been  abandoned  for  many 
years  by  the  trustees,  who  never  paid  the  taxes  on  the  lands, 
nor  participated  in  the  claims  on  government  for  comj)ensatiou 
under  the  Spanish  treaty,  or  called  on  Yard  for  reimbursement 
of  the  sums  they  were  asserted  to  have  paid  out  of  Stevens' 
funds  for  his  account,  nor  intervened  on  the  present  trial.  It 
is  the  defendant  who  sets  up  this  dormant,  deserted  trust. 

The  defects  on  the  face  of  the  instrument  itself  show  that, 
as  against  creditors,  it  is  fraudulent  and  void.  The  trustees,  in 
whom  the  legal  estate  is  intended  to  be  vested,  are  not  to  sell 
for  three  years.  A  creditor  obtaining  judgment  is  then  to  be 
delayed  for  three  years,  without  the  power  of  laying  an  execu- 
tion on  the  lands.  There  is  a  direct  resulting  trust  in  favour 
of  Stevens,  if  the  creditors  on  account  of  Yard  are  satisfied, 
whether  the  others  are  or  not.  This  brings  it  within  the  case 
r*Vfi71  ^^  Burd  V.  Fitzsimmons,  as  explained  *by  Chief  Justice 
'  -'  Tilghman,  in  Wilt  r.  Franklin,  1  Binn.  515.     If  it  is 

fraudulent,  it  is  void ;  and  that  which  is  void,  can  be  set  up  by 
no  supposed  act  of  confirmation.  1  Inst:  295;  3  Burr.  1794; 
4  Cruise,  105.  Adlum's  receipt  of  moneys  from  the  trustees  did 
not  bind  him.  That  he  knew  of  the  assignment,  is  obvious 
from  the  language  used,  though  it  does  not  appear  that  he  knew 
the  contents  of  it.  The  payment  of  taxes  by  the  assignor,  or 
his  agent,  is  a  strong  argument  in  favour  of  the  extinction  of 
184 


Jbw.  24,  1829.]      OF  PENNSYLVANIA.  1G7 

[Adluin  V.  Yard.] 

the  trust.     4  Johns.  586  ;  10  Serg.  &  Rawle,  427 ;  14  Johns. 
464 ;  20  Johns.  447. 

Binney  and  Chauncey,  for  the  defendant  in  error. — 1.  In  re- 
fusing to  permit  Mr.  Yard's  final  examination  before  the  com- 
missioners of  bankruptcy  to  be  read  in  evidence,  the  District 
Court  was  right.  It  was  offered  in  order  to  prove  that  lie  was 
not  entitled  to  certain  credits  stated  to  be  due  to  him,  for  ad- 
vances made  before  his  bankruptcy  for  Dr.  Stevens.  The  evi- 
dence was  liable  to  objection,  1st.  Because  it  was  irrelevant. 
No  such  credits  were  stated  to  be  due  to  Yard.  They  are 
stated  argumentatively  to  be  due  to  his  assignees,  and  whether 
the  fact  be  so  or  not,  is  immaterial.  2dly.  Because  it  is  not 
competent  to  the  plaintiff  to  overthrow  the  answer  of  Mr.  Yard, 
by  discrediting  him. 

The  question  is  new  and  of  great  interest.  The  plaintiff  had 
examined  Mr.  Yard  three  times  under  oath ;  he  had  read  his 
answers  to  the  jury  and  neither  produced  nor  offered  to  produce, 
any  other  evidence  in  support  of  his  case.  But  he  offered,  from 
Mr.  Yard's  former  declarations,  to  contradict  and  thus  to  dis- 
credit him.  No  principle  has  been  stated,  or  authority  produced, 
to  sanction  such  a  course.  The  case  of  Walker  v.  Wallace,  2 
Dall.  113,  is  not  to  the  purpose.  It  was  a  question  of  costs,  and 
it  did  not  appear  that  the  answers  were  read  on  the  trial.  The 
answers  of  Mr.  Yard  may  be  regarded,  1.  As  those  of  the  plain- 
tiff's own  witness.  2.  As  the  answer  of  a  defendant  in  chancery. 
3.  Under  the  act  of  assembly. 

1.  Mr.  Yard  is  to  be  regarded  as  the  plaintiff's  witness,  and 
not  as  a  mere  party.  He  is  presumed  to  stand  perfectly  neu- 
tral, and  his  answers  operate  against  the  defendant  in  the  at- 
tachment, for  which  purpose  they  were  read.  A  party  cannot 
contradict  his  own  witness  by  showing  that  he  made  a  different 
statement  at  a  different  time,  because  it  directly  discredits  him, 
which  cannot  be  done.  If  a  party's  own  witness  unexpectedly 
states  a  fact  which  operates  against  him,  he  may  call  a  witness 
to  prove  that  the  fact  was  otherwise.  Beyond  this  he  cannot 
go.  1  Phill.  20,  211,  212;  Bull.  N.  P.  297.  In  the  case  of 
Nicoll  V.  Conard,  recently  decided  in  the  Circuit  Court  of  the 
United  States  for  this  District,  Judge  Washington  expressly 
overruled  the  evidence  offered  by  the  plaintiff  to  show  that  wit- 
nesses called  by  them  and  stating  certain  facts  on  their  cross- 
examination,  had  stated  them  differently  on  other  occasions. 
The  plaintiff  was  not  bound  to  read  the  answers  of  the  gar- 
nishees ;  but  having  chosen  to  read  them,  he  read  them  as  truth. 
They  could  be  no  surprise  upon  him,  as  he  was  previously  ac- 

185 


168  SUPREME  COURT  [Philadelphia, 

[Adlum  ».  Yard.] 

r*ir8l  1"^'"*^  *with  their  couteuts.  In  Alexander  v.  Gibson, 
L  J  2  Canipb.  556,  Lord  Ellcnborough  said,  that  a  i)arty  is 
not  to  set  up  so  much  of  a  witness's  testimony  as  makes  for  him, 
and  reject  or  disprove  such  part  as  is  of  a  contrary  tendency ; 
but  if  a  witness  is  called  and  gives  evidence  against  the  party 
calling  him,  he  may  be  contradicted  by  other  witnesses  on  the 
same  side,  and  in  this  manner  his  evidence  may  be  entirely  re- 
pudiated. 2.  If  the  answers  of  the  garnishee  are  to  be  regarded 
in  the  light  of  an  answer  in  chancery,  it  was  not  competent  to 
the  plaintiff  to  reject  any  part  of  them  by  the  evidence  offered. 
It  is  a  fundamental  rule  that  the  whole  of  an  answer  nmst  be 
taken,  if  it  be  taken  at  all,  and  that  part  cannot  be  taken  and 
part  rejected.  1  Pliill.  Ev.  264 ;  Lynch  v.  Clark,  3  Salk,  154 ; 
Bull.  N.  P.  237 ;  1  Starkie  on  Evidence,  291.  It  is  utterly 
against  the  rule  of  reason  to  permit  a  party  to  discredit  the 
defendant,  or  to  reject  a  part  of  his  answer  by  showing  that  he 
stated  otherwise  at  another  time.  The  course  attempted  to  be 
adopted  on  the  other  side,  is  an  attempt  to  reject  the  answers, 
not  by  disproving  facts  by  other  competent  evidence,  but  by 
raising  a  question  about  the  party's  credibility.  7  Johns.  Ch. 
R.  217. 

3.  Under  the  act  of  assembly  of  the  28th  of  September,  1789, 
sec.  3,  the  garnishee  is  bound  to  exhibit  full,  direct,  and  true 
answers.  If  the  plaintiff  thinks  he  has  not  done  so,  he  may 
apply  to  the  judges  for  judgment  that  he  has  assets  to  pay.  If 
he  omits  to  do  this,  but  goes  to  trial  and  uses  the  answers  on  the 
hearing,  he  admits  them  to  be  full,  direct,  and  true.  He  is  not 
bound  to  use  them  ;  but  if  he  does,  he  admits  them.  The  judge 
was  therefore  right,  in  refusing  to  admit  the  garnishee's  exami- 
nation to  be  read  in  contradiction  of  his  answers.  He  confined 
himself  to  evidence  of  that  kind,  and  did  not  extend  his  rejec- 
tion to  every  kind  of  evidence  from  every  other  quarter.  There 
was  no  refusal  to  admit  evidence  to  show  that  the  garnishee  was 
mistaken.  But  these  points  are  immaterial,  if  the  court  below 
was  right  in  their  charge  as  to  Dr.  Stevens'  assignment ;  for  if 
the  court  did  commit  an  error,  yet  if  the  judgment  be  right  on 
the  whole,  it  will  not  be  reversed.  Edgar  v.  Boies,  1 1  Serg.  & 
Rawle,  451;  Allen  v.  Rostain,  Id.  373,  374;  Munderbach  v. 
Lutz,  14  Serg.  &  Rawle,  220. 

2d.  The  main  question  is,  whether  the  assignment  did  not 
pass  Stevens'  interest  in  the  money  now  demanded,  to  his  as- 
signees. The  only  fund  in  question  was  that  received  under  the 
Florida  treaty.  The  case  stood  on  the  assignment,  and  the  acts 
under  it,  to  which  Adlum  was  a  party.  The  assignment  passed 
this  interest  generally  and  specially,  and  it  appears  from  Ad- 
liim's  receipts  that  he  received  nearly  seven  thousand  dollars 
186 


J(»t.  24, 1829.]       OF   PENNSYLVANIA.  1C8 

[Adlum  V.  Yard.] 

from  the  assignees  out  of  the  eifects  assigned.  The  assignment 
was  never  abandoned,  but  the  assignees  waited  for  tlie  Asia  and 
Dolly,  to  obtain  the  means  of  making  another  dis'idcnd.  It  is 
objected  that  the  deed  is  void  on  its  face,  by  reason  of  the  clause 
relating  to  the  lauds.  To  this  it  may  be  answered,  that  no 
deed  is  absolutely  void,  even  though  it  tend  *to  delay  r^^-.  nqi 
creditors.  Roberts,  3  Stat.  13  Eliz.  c.  5.  It  is  void  L  -■ 
only  against  certain  persons  whom  it  injures.  It  is  good  against 
Stevens,  who  could  not  assert  this  money  to  be  his.  It  was 
never  received  as  such.  The  attachment  claiming  this  as  Ste- 
vens' money  in  Yard's  hands,  insists  that  Yard  was  tlie  debtor 
of  Stevens,  in  spite  of  Stevens'  own  act.  The  assignment  was 
likewise  good  against  all  creditors  assenting  to  it  and  adopting 
it.  Volenti  non  Jit  injuria.  Anderson  v.  lloberts,  18,  Johns. 
525,  526;  Thomson  v.  Dougherty,  12  Serg.  &  liawle,  459;  1 
Bac.  Ab.  444;  22  Vin.  13,  pi.  18;  Id.  24,  pi.  2,  note.  Xon 
condat  that  there  was  a  single  creditor  who  did  not  assent  and 
take  a  dividend.  It  is  perfectly  clear  that  Adlum  did.  He, 
therefore,  was  not  delayed  or  hindered.  He  might  have  avoided 
the  assignment,  and  resorted  to  the  land  by  virtue  of  his  mort- 
gage. It  is  further  objected,  that  being  originally  void,  the 
assignment  is  incapable  of  confirmation.  It  has  been  shown 
that  it  W'as  not  utterly  void.  The  doctrine  of  confirmation  is 
not  applicable.  It  is  not  the  case  of  a  defeasible  estate,  by  rea- 
son of  a  defective  title  in  Stevens,  the  real  title  being  in  another; 
but  of  a  deed  voidable  by  creditors,  who  have  elected  to  approve 
or  not  to  question  it.  The  objection  that  the  instrument  was 
void  in  consequence  of  the  continued  possession  of  Stevens,  is 
not  supported  in  point  of  fact.  The  taxes  paid  by  Yard,  were 
on  Mrs.  Stevens'  lands,  and  charged  to  her  husband.  There  is 
nothing  to  show  such  a  possession  on  the  part  of  Stevens,  but 
decided  acts  to  the  contrary. 

In  reply,  it  was  observed,  that  the  act  of  1789  did  not  devolve 
the  hearing  of  the  case  upon  the  court,  exclusive  of  the  jury. 
(The  court  deemed  it  was  unnecessary  to  argue  that  point.) 

In  respect  to  the  assignment,  the  plaintiff  did  not  claim  under 
Stevens,  but  against  him,  and  to  the  overthrow  of  his  acts  ;  like 
the  creditor  proceeding  to  judgment  and  execution,  according  to 
Judge  Duncan's  opinion  in  Thomson  v.  Dougherty.  The  delay 
on  the  part  of  Stevens'  trustees,  could  not  be  accounted  for  in 
the  manner  proposed.  In  1807,  the  treaty  of  1819  could  not 
have  been  anticipated;  and  from  1819  till  the  present  day  they 
have  remained  entirely  inactive.  We  must  suppose,  either  that 
they  had  relinquished  their  trust,  or  that  the  objects  of  it  had 
been  accomplished. 

187 


169  SUPREME  COURT  [PhUadelphia, 

[Adium  t>.  Yard.] 

The  opinion  of  the  court  Avas  delivered  by 

Gibson,  C.  J. — Under  the  act  of  1805,  the  case  of  the  gar- 
nishee was  exactly  that  of  any  other  defendant,  the  burthen  of 
proof  resting  exclusively  on  the  plaintiff.  But  under  the  act  of 
1789,  his  position  is  entirely  changed;  being  held  liable  in  the 
first  instance,  and  till  he  purge  himself  on  oath.  His  situation, 
therefore,  is  not  that  of  a  witness,  or  a  respondent  in  ecjuity ; 
nor  is  his  answer,  when  used  against  him,  to  be  used  as  eviden<-e 
originally  adduced  by  the  plaintiff.  Like  a  deposition  which 
has  passed  publication  in  chancery,  it  is  in  evidence  before  the 
r*l7m  ^'6^^'i^&)  but  in  evidence  on  the  *part  of  the  garnishee, 
L  J  who  could  not  else  sustain  himself  long  enough  even  to 
get  before  a  jury.  The  plaintiff  may,  therefore,  use  it  or  not  at 
discretion,  just  as  a  party  may  use  answers  extorted  by  a  cross- 
examination  ;  and  he  is  consequently  not  bound,  as  in  the  case 
of  a  bill  of  discovery,  to  take  the  answer  as  true,  but  may  dis- 
credit it  in  the  same  way  that  he  might  discredit  the  evidence  of 
a  witness  on  the  adverse  part.  Where  the  garnishee  neglects 
or  refuses  to  make  "  full,  direct,  and  true  "  auswei's,  the  matter 
charged  is  to  be  taken  pro  confesso,  and  judgment  rendered 
against  him ;  so  that  the  governing  principle  of  the  act  is  to  hold 
him  chargeable  till  he  discharge  himself,  at  least  by  his  own 
oath ;  arid,  failing  to  do  so,  he  is  to  remain  fixed.  This  is  ex- 
pressly his  condition  before  answer  put  in.  But  where  the  an- 
swer IS,  prima  foAiie  sufficient,  its  truth  may  be  inquired  of  by  a 
jury  ;  and  the  plaintiff  makes  out  his  case  merely  by  destroying 
the  effect  of  the  answer,  unless  the  garnishee  has  maintained  the 
issue  by  other  satisfactory  evidence ;  and  this  the  plaintiff  may 
do  by  disproving  the  matter  alleged  in  the  answer,  or  by  show- 
ing the  garnishee  to  be  entirely  unworthy  of  credit.  In  doing 
this,  he  restores  the  responsibility  of  the  garnishee  to  the  footing 
on  which  it  was  before  the  exhibition  of  the  answer.  On  this 
principle,  evidence  which  falsifies  any  fact  asserted  in  the  answer, 
goes  to  the  credibility  of  the  garnishee,  and  is  therefore  comjje- 
tent.  This  construction  may  seem  severe ;  but  it  is  entirely  in 
accordance  with  the  spirit  of  the  act ;  and  it  is  not  more  so  than 
policy  has  been  proved  by  experience  to  require.  All  necessary 
facts  and  circumstances  are,  for  the  most  part,  exclusively  in 
the  knowledge  of  the  garnishee;  and  without  holding  him  to  a 
strict  account,  the  remedy  by  foreign  attachment  would  seldom 
be  effectual.  It  is  not  to  be  understood  from  this,  that  every 
step  is  necessarily  fatal,  or  that  a  plaintiff  entitles  hiniself  to  a 
verdict,  where  the  jury  are  satisfied  from  the  whole  evidence, 
that  the  garnishee  has  in  truth  no  effects  of  tlie  original  debtor. 
But  where  the  cause  goes  to  the  jury  with  no  evidence  on  the 
part  of  the  garnishee  but  his  own  answer,  and  that  is  discred- 
188 


Jan.  24,  1829.]       OF  PENNSYLVANIA.  170 

[Adlum  V.  Yard.] 

ited  entirely,  or  as  regards  the  facts  which  constitute  his  title  to 
a  verdict,  the  jury  are  bound  to  find  against  him. 

How  does  this  bear  on  the  question  of  evidence  ?  In  his  an- 
swer to  the  second  set  of  interrogatories,  the  garnishee  had 
stated,  that  Doctor  Stevens  was  not  originally  interested  in  the 
cargoes  of  the  Asia  and  the  Dolly,  and  that  no  specific  payment  on 
account  of  his  interest,  was  ever  made  by  him ;  but  that  he  be- 
came chargeable  by  the  respondent  in  a  heavy  account  pending 
between  them  ;  and  that  the  advances  made  by  the  respondent 
would  alone  have  absorbed,  to  within  a  trifle,  the  amount  which 
Doctor  Stevens  could  have  claimed.  At  the  trial  the  plaintiif 
oifered  the  final  examination  of  the  garnishee  before  the  com- 
missioners of  bankruptcy,  "  in  order  to  prove  that  the  same 
James  Yard  (the  garnishee)  was  not  entitled  to  claim  certain 
credits  stated  to  be  due  to  him  for  advances  made  by  him  before 
his  bankruptcy  for  the  said  Edward  Stevens."  It  is  obvious,  on 
the  *principle  I  have  indicated,  that  the  evidence  thus  r*i  7-1-1 
oifered  was  competent  to  contradict  a  fact  distinctly  as-  ^  -^ 
serted  by  the  garnishee. 

The  exception  to  the  charge  is  not  sustained.  The  clause  in 
the  assignment  by  which  the  trustees  were  to  be  restrained  from 
selling  the  land  for  a  period  of  three  years,  was  undoubtedly  in 
delay  of  creditors,  and  brought  the  whole  within  the  purview 
of  the  13  Eliz.  The  plaintiif  might  originally  have  repudiated 
this  assign  n)ent,  but  having  taken  a  dividend  under  it,  he  shall 
not  now  question  its  validity.  It  has  been  pressed  on  us,  that  a 
contract  forbidden  by  a  statute,  is  incapable  of  confirmation, 
except  on  terms  which  render  it  consistent  with  the  statute,  and 
for  a  new  consideration.  No  one  can  doubt  it.  But  surely  the 
acceptance  of  a  dividend  under  a  deed  of  trust,  is  a  new  and 
a  perfect  consideration.  Any  one  may  waive  the  advantage  of 
a  law  introduced  for  his  own  benefit ;  and  I  cannot  imagine 
why  creditors  may  not  ratify  a  contract  fraudulent  only  as  to 
themselves,  even  in  anticipation  of  a  benefit.  But  where  money 
is  actually  received,  and  on  an  implied  condition  that  the  re- 
ceiver shall  not  question  the  title,  every  principle  of  natural  jus- 
tice requires  that  the  condition  should  be  performed.  The 
doctrine  of  election  is  more  analogous  to  estoppel  than  confirma- 
tion ;  and  an  estoppel  may  arise  as  well  from  matter  in  pais 
as  matter  of  record.  Doctor  Stevens  might  have  excluded  the 
plaintiif  from  the  benefit  of  the  trust  altogether ;  and  had  he 
supposed  the  latter  would  not  have  agreed  to  every  part  of  the 
arrangement,  he  would  certainly  have  done  it :  so  that  the 
plaintiff  having  accepted  a  dividend  on  the  only  terms  on  which 
it  was  oifered,  is  as  effectually  concluded  from  claiming  in  re- 
pugnant rights,  as  if  he  had  asserted  the  validity  of  the  deed  of 

189 


171  SUPREME  COURT  [Philculelphia, 

[Adlum  V.  Yard.] 

trust  in  a  court  of  record.  But  it  is  supposed  that  the  doctrine 
of  election  is  inai)plicable  to  creditors.  There  is  no  adjudication 
in  support  of  this,  but  Kidney  v.  Coussmaker,  (12  Ves.  154,) 
which  cannot  be  cited  here  as  an  authority  for  anything  what- 
soever, and  from  which,  in  the  broad  terms  in  which  the  prin- 
ciple is  predicatetl,  I  entirely  dissent.  That  was  the  case  of  a 
devise  of  part  of  the  estate  to  trustees  for  payment  of  debts ; 
and  it  was  held  that  the  creditors  having  obtainetl  from  the  trust 
fund,  satisfaction  only  in  part,  were  not  precluded  from  recourse 
to  other  parts  of  the  estate  which  passed  by  the  same  will.  To 
this  I  entirely  assent,  because  the  creditors  could  not  be  viewed 
as  legatees,  and  the  setting  apart  of  a  portion  of  the  estate  for 
the  sake  of  convenience,  indicated  no  intention  that  the  cred- 
itors should  not  be  paid  in  the  event  of  its  falling  short.  The 
law,  therefore,  would  not  imply  a  condition  that  the  creditors 
should  relinquish  their  rights  on  the  rest  of  the  estate.  But  the 
unqualified  assertion  of  the  Master  of  the  Rolls  that  the  doc- 
trine of  election  is  utterly  inapplicable  to  creditors,  seems  to  be 
received  with  many  grains  of  allowance  even  in  England.  (1 
Hovenden's  notes  to  Vesey,  172.)  In  Irvine  v.  Tab,  decided 
at  the  last  term  for  the  Western  Circuit,  we  applied  it  to  cred- 
itors claiming  different  debts  under  the  same  mortgage.  In  the 
r^^Y9"|  c^6  ^t  ^^^^)  the  debtor  *might  prescribe  the  terms;  and 
L  "'-'  the  plaintiff  having  received  his  dividend  on  an  inherent 
condition  to  permit  the  whole  arrangement  to  take  effect,  it 
seems  clear  that,  subsequent  to  the  period  of  acceptance,  the 
debt  attached  as  due  to  Doctor  Stevens,  was  to  every  intent 
vested  in  his  assignees. 

But  it  is  supposed  the  court  erred  in  charging  that  no  pre- 
sumption arose  from  lapse  of  time,  that  the  objects  of  the  trust 
had  been  accomplished  or  abandoned  ;  in  either  of  which  events, 
the  contingent  resulting  trust  in  favour  of  the  debtor,  Avould  have 
taken  effect  in  possession.  There  was,  it  seems  however,  a  lapse 
of  but  seventeen  years  from  a  time  when  the  business  of  the 
trust  wa.s  in  full  activity  ;  a  period  which  without  corroborating 
circumstances,  is  too  short  to  raise  a  legal  presumption  that  the 
debts  were  paid,  or  that  Mr.  Yard's  estate  had  within  the  pre- 
scribed period  been  found  sufficient  to  discharge  all  his  debts 
for  which  Doctor  Stevens  had  become  responsible.  Besides,  the 
delay  is  satisfactorily  accounted  for  by  the  fact  that  the  effects 
on  which  the  attachment  is  laid,  were  received  but  a  short  time 
before ;  and  it  does  not  appear  whether  there  was,  in  the  mean 
time,  any  other  property  in  hand.  In  the  absence,  then,  of  all 
circumstances  but  such  as  tended  to  rebut  the  su})posed  pre- 
sumption, the  court  did  not  err  in  charging  that  the  lapse  of 
time  was  insufficient  to  revest  the  property  in  the  assignor. 
190 


Jan.  24,  1829.]     OF   PENNSYLVANIA.  172 

[Adinm  v.  Yard.] 

The  following  opinion  was  delivered  by 

Huston,  J. — It  has  been  said,  that  one  or  more  questions 
arise  in  this  case  which  are  entirely  new — have  never  been  raised 
in  any  case,  or  decided  by  any  court.  Perhaps  this  is  true. 
But  it  does  not  follow,  that  these  questions  are  all  of  them  diffi- 
cult. 

The  first  act  about  attachments,  passed  in  1705,  (Purd.  Dig. 
37,  1  Sm.  Laws,  45,)  contemplates  a  trial  by  jury  throughout, 
and  expressly  mentions,  in  the  fourth  section,  "  If  the  plaintiff 
in  the  attachment  obtain  a  verdict,  judgment,  and  execution," 
<fec.  And,  in  the  fifth  section,  expressly  provides  for  a  trial  by 
jury,  when  the  garnishee  denies  that  he  has  goods,  &c.,  and 
directs  the  course  of  the  proceeding  after  the  verdict.  This  act, 
however,  made  no  provision  for  compelling  the  garnishee  to 
disclose  what  goods,  "chattels,  moneys,  and  credits  of  the  defend- 
ant were  in  his  custody  and  possession,  or  due  and  owing  by 
him  to  the  defendant.  To  obtain  this  disclosure,  an  act  was 
passed  the  28th  of  September,  1789,  (Purd.  Dig.  38,  2  Sm. 
Laws,  502,)  called  a  supplement  to  the  several  laws  about  at- 
tachments ;  by  the  second  section  of  which  it  is  provided,  that 
the  plaintiff,  after  having  obtained  judgment  against  the  defend- 
ant, may  prepare  in  writing,  and  file  in  the  court  out  of  which 
the  attachment  issued,  such  interrogatories,  upon  which  the  said 
plaintiff  is  or  shall  be  desirous  to  obtain  and  compel  the  answers, 
of  any  and  everj^  garnishee,  in  whose  hands  the  said  writ  or 
writs  of  attachment  hath  or  have  been  or  shall  be  respectively 
laid  and  served,  touching  the  goods,  chattels,  moneys,  effects, 
and  credits  of  the  said  defendant  or  ^defendants,  in  his  r*-i7oi 
or  their  possession,  custody,  and  charge,  or  from  liini  or  L  'J 
them  respectively  due  at  the  time  of  the  service  of  the  writ  of 
attachment,  or  at  any  other  time. 

Section  third  provides,  "  Each  and  every  such  garnishee  or 
garnishees  to  whom  a  copy  of  such  interrogatories  shall  be  de- 
livered, is  and  are  required  and  enjoined  to  appear,  &c.,  and 
exhibit,  under  oath  or  affirmation,  full,  direct,  and  true  answers 
to  all  interrogatories  by  the  said  plaintiff  prepared  and  filed  ; 
and,  if  any  garnishee  or  garnishees  shall  neglect  or  refuse  so  to 
do,  then  and  in  such  case  it  shall  and  may  be  lawful  for  tlie 
justices  of  the  proper  court,  and  they  are  hereby  required  to 
adjudge,  that  such  garnishee  or  garnishees,  so  neglecting  or  re- 
fusing as  aforesaid,  hath  or  have  in  his  or  their  possession,  cus- 
tody, or  charge,  goods,  chattels,  moneys,  and  effects  of  the  said 
defendant  or  defendants,  in  such  writ  or  writs  of  attaclimcnt 
respectively  named,  or  is  and  are  indebted  to  such  defendant 
or  defendants,  to  an  amount  and  value  sufficient  to  pay  and 
satisfy  the  debt,  claim,  or  demand  of  the  said  plaintiff,  togetiier 

191 


173  SUPREME  COURT  {PhUadHphia, 

[Adlum  V.  Yard.] 

with  legal  costs  and  (jharges  of  suit.  And  shall  award  execu- 
tion against  the  persons  or  goods,  &c.,  of  the  said  garnishee  or 
garnishees,  and  proceed  in  the  same  manner  as  if  judgment  had 
been  obtained  or  pronounced  in  pursuance  of  the  verdict  of  a 
jury  or  by  virtue  of  the  confession  of  the  party." 

It  is  now  contended,  the  court,  and  the  court  alone,  are  to 
decide  whether  the  answers  are  full,  direct,  and  true ;  and, 
more,  that  the  court  is  to  decide  on  the  answers  themselves, 
without  any  evidence  whatever  to  contradict  the  answers. 

It  may  be  conceded,  that  the  court  could  decide,  without 
going  out  of  the  questions  and  answers,  whether  the  answer  was 
direct ;  and,  in  one  sense  of  the  word,  whether  the  answer  was 
full ;  but  in  another,  and  in  such  case  more  material  sense  of 
the  word,  the  court  could  not  decide.  For  example — to  the 
question  what  goods  and  effects  of  the  defendant  the  garnishee 
had  in  his  hands,  the  garnishee  might  answer  as  to  part  of  the 
goods,  and  say  nothing  as  to  other  goods.  It  may  be  said  this 
would  come  under  the  word  true.  Be  it  so :  my  construction  of 
the  phrase  is,  that  each  answer  must  be  full,  and  direct,  and 
true — exactly  tantamount  to  an  oath  to  a  witness,  "  to  testify 
the  truth,  the  whole  truth,  and  nothing  but  the  truth."  The 
witness,  whose  testimony  is  not  correct  in  all  these  particulars, 
is  perjured,  and  may  be  indicted  and  punisjied,  if  the  aberration 
from  truth  was  intentional  and  material.  So,  perhaps,  could 
the  garnishee.  This  punishment,  however,  does  produce  justice 
to  the  party  whose  cause  is  trying;  and  he  is  permitted,  by 
other  testimony,  to  explain  or  contradict  any  testimony  which 
would  destroy  his  cause  of  action  or  his  defence.  Admit,  how- 
ever, for  a  moment,  that  the  court  alone  were  to  judge  of  and 
decide  on  these  answers,  how  they  could  determine  whether 
they  were  full  and  true,  without  hearing  other  testimony,  is  for 
those  to  explain  who  advocate  this  position.  But  it  is  perhaps 
r*1 74.1  ^^^y  contended,  that  the  *answers  are  conclusive  as  to 
L  J  their  fulness  and  truth  when  the  plaintiff  reads  them ; 
and  that  when  he  has  read  them,  he  shall  not  be  permitted  to 
contradict  or  vary  them  in  any  particular. 

I  am  of  opinion  that  he  may  read  them,  and  afterwards  show 
that  they  are  neither  full  nor  true. 

As  respects  the  plaintiff's  demand  against  the  defendant,  in 
the  attachment,  let  it  be  remembered  that  is  already  established, 
and  a  judgment  entered.  The  scire  facias  and  interrogatories 
are  not  to  make  out  a  case  as  between  the  plaintiff  and  defend- 
ant ;  but  to  enable  the  plaintiff  to  recover  the  amount  of  his 
judgment  from  goods,  &c.,  of  the  defendant,  alleged  to  be  in  the 
possession  of  the  garnishee,  and,  further,  the  interrogatories  are 
not,  and  need  not  be,  resorted  to  where  the  garnishee  has  at  all 
192 


JaM.  24, 1829.]       OF  PENNSYLVANIA.  174 

[Adlum  V.  Yard.] 

times  disclosed  what  goods,  credits,  &c.,  of  the  debtor  were  in 
his  hands.  It  is  only  where  the  garnishee  denies  that  he  has 
any  goods,  or  the  plaintiff  supposes  him  to  have  more  than  he 
admits,  that  this  proceeding  is  necessary.  The  first  act  is  not 
repealed,  and  you  may  proceed  under  it,  if  it  will  answer  the 
purpose.  The  matter  then  in  dispute  on  this  scw-e  facias,  and 
the  interrogatories,  is  a  matter  between  the  plaintiff  and  tlie 
garnishee,  and  in  which,  but  for  this  act  of  assembly,  the  plain- 
tiff could  not  obtain  the  answer  of  the  garnishee.  It  is  not  the 
case  of  a  plaintiff  calling  a  witness,  and  afterwards  discrediting 
his  testimony,  which  I  shall  leave  as  it  is  in  the  decisions  of  our 
own  courts  in  the  cases  cited. 

It  is  much  more  analogous  to  a  bill  in  chancery,  and  the  an- 
swer of  a  trustee  who  is  called  upon  to  state  on  oath,  whether 
he  has  effects  liable  to  pay,  and  in  consequence  is  liable  to  pay, 
the  debt  of  the  plaintiff;  in  which  case,  if  the  cause  is  tried  on 
bill  and  answer,  the  answer  is  taken  to  be  true ;  that  is,  where 
it  is,  on  the  face  of  it,  full  and  direct.  But  the  plaintiff  may 
deny  the  truth  of  it,  and  if  its  truth  is  put  in  issue,  may  dis- 
prove all  or  any  part  of  it. 

Now,  in  this  case,  an  issue  was  regularly  formed.  I  do  not, 
however,  admit  that  we  are  to  go  to  the  practice  of  Courts  of 
Chancery  for  our  direction  as  to  the  mode  of  proceeding  under 
our  acts  of  assembly.  It  may  be  referred  to,  but  it  is  not  con- 
clusive. This  act  of  1789  was  intended  to  be  carried  into  effect 
by  a  Court  of  Common  Law,  and  by  the  process  of  our  Common 
Law  Court.  A  chancellor  might  commit,  for  refusing  to  an- 
swer, or  to  give  a  full  and  direct  answer ;  but  he  would  not  sell 
the  goods  of  the  party  refusing,  and  collect  the  debt  of  the 
plaintiff. 

I  have  shown  the  first  act  contemplated,  nay,  provided  for,  a 
trial  by  jury,  where  the  garnishee  pleaded  that  he  had  no  goods, 
&c.,  of  the  defendant.  That  act  is  not  repealed  by  the  supple- 
ment :  it  is  left  in  full  force,  and  an  additional  mode  of  obtain- 
ing information  as  to  debtor's  effects  is  given  to  him.  But, 
even  where  the  garnishee  answers,  that  he  has  no  goods,  &c.,  he 
is  not  done ;  he  is  not  discharged ;  he  must  plead  to  the  scire 
facias,  and  the  plaintiff  may  take  issue  on  his  plea,  and  a  trial 


[*175] 


be  had.  AVe  have  several  acts  of  *assembly,  which, 
from  the  letter  of  them,  Av^ould  seem  to  give  to  the  court 
alone  the  power  of  determining  facts  as  well  as  law.  For  ex- 
ample, the  twelfth  and  fifteenth  sections  of  the  act  for  opening, 
repairing,  &c.,  roads,  which  gives  to  justices  of  the  peace  a  power 
of  proceeding  against  supervisors  neglecting  their  duty,  or 
against  individuals  obstructing  a  road,  with  the  right  of  appeal, 
in  each  case,  to  the  Court  of  Quarter  Sessions,  who  shall  take 
VOL.  I.— 13  193 


175  SUPREME  COURT  {PkiladdpMa, 

[Adlum  V.  Yard  ] 

sucli  order  thereon  as  to  them  sliall  aj)pear  just  ami  reasonable  ; 
and  the  same  shall  be  conclusive.  Under  this  act,  so  far  as  I 
know,  the  practice  has  been,  where  the  fact  of  neglect  of  duty, 
or  of  obstructing  the  road,  is  denie^l,  not  for  the  court  to  decide 
it,  but  a  bill  of  indictment  is  sent  up,  and  the  facts  decided  by 
a  jur}',  and  I  know  of  no  otlier  mode  of  proceeding  in  use. 
There  are  similar  acts  in  more  than  one  of  civil  cases ;  in  all  of 
which,  so  far  as  I  know,  where  facts  are  contested,  an  issue  is 
formed  in  the  cause,  or  a  feigned  issue,  to  settle  the  facts. 

If  the  defendant's  construction  is  right,  the  act  of  1789  would 
produce  one  of  two  effects  :  it  would  leave  the  plaintiff's  rights 
and  recovery  perfectly  at  the  mercy  of  tlie  opposite  party ;  for 
I  have  shown  that  the  garnishee  has,  where  the  truth  of  his 
answer  is  contested,  become  the  real  party,  or  it  would  be  of  no 
advantage  to  the  plaintiff  at  all.  That  the  practice  has  been,  to 
go  on  to  trial  after  the  answers  of  the  garnishee,  and  to  prove; 
if  it  can  be  proved,  that  his  answers  are  not  full  and  true,  seems 
to  me  to  be  fully  proved  by  2  Dall.  113,  where  the  court  estab- 
lish a  rule  as  to  costs  in  such  cases. 

A  garnishee  may  appear  before  the  court  and  jury  in  situ- 
ations very  dissimilar.  He  may  have  no  claim  to  any  part  of 
the  funds, — may  be  perfectly  indifferent  between  the  different 
claimants  of  the  fund,  or  he  may  allege  a  right  to  retain  a  part 
or  the  whole  of  it,  on  some  contract  or  for  some  debt  to  himself. 
A  factor  may  retain  for  the  balance  due  him,  or  a  consignee  may 
retain  goods  consigned  to  liim,  to  pay  a  debt  due  to  himself,  or 
a  debt  due  to  himself  from  the  consignee,  though  the  goods  were 
not  consigned  expressly  for  that  purpose.  1  Dall.  3.  But 
where  a  foreign  attachment  is  laid  on  such  goods,  the  garnishee 
must  show  that  there  is  a  debt  due  to  him  from  the  consignee  by 
other  evidence  than  his  own  oath.  The  act  directs  interroga- 
tories as  to  goods,  &<i.,  in  his  hands  and  custody,  or  debts  due 
from  himself,  and  to  such  interrogatories,  he  is  compelled  to 
answer.  If  he  goes  beyond  this,  and  states  any  debt  due  to 
himself  from  the  absent  debtor,  his  oath  is  no  evidence  of  such 
debt.  If  he  goes  still  further,  and  states  particulars  of  how  it 
became  due,  and  when  and  to  what  precise  amount,  his  answer 
in  this  particular  is  beyond  the  intention  of  the  act ;  and,  if 
such  part  of  his  answer  could  be  separated  from  the  rest,  in  my 
opinion  it  ought  not  to  go  to  the  jury  at  all.  If  it  be  so  mingled 
and  interwoven  with  the  disclosure  of  what  is  in  his  hands  as 
not  to  be  separated,  the  jury  ouglit  to  be  told  it  is  no  evidence 
of  the  facts  stated.  It  can,  at  best,  be  only  considered  as 
notice  of  what  he  intends  to  prove,  and  which  ought  to  be 
r*17fil  *<^isregarded,  unless  proved;  and,  as  to  all  such  parts 
^  J  of  the  answer  as  go  to  show  a  right  of  retainer  by  the 
194 


Tan.  24,  1829.J       OF  PENNSYLVANIA.  176 

[Adlum  V.  Yard.] 

garnishee,  the  plaintiff  may  disprove  it  by  any  legal  evidence 
which  he  can  adduce.  It  has  been  said  that  part  of  more  than 
one  of  these  answers  was  argument — matter  stated  hypotheti- 
cally.  If  so,  such  part  clearly  was  not  evidence,  and  ought  to 
have  been  rejected.  But  the  plaintiff  did  not  consider  it  so,  nor 
did  the  court ;  nor  do  I  think  it  was  so  intended  by  the  gar- 
nishee. His  counsel  did  not  put  it  on  that  ground  at  the  trial. 
The  expression,  "  The  respondent  has  a  just  claim  upon  the 
said  Edward  Stevens,  for  the  balance  of  an  account  current  set- 
tled in  Dec,  1824,  to  the  amount  of  four  thousand  six  hundred 
and  eleven  dollars  and  three  cents,"  in  No.  6,  of  the  first  inter- 
rogatories ;  and  the  expression,  that  after  Stevens  became  inter- 
ested in  the  Asia  and  Dolly,  "  he  became  chargeable  by  the 
respondent  in  a  very  heavy  account  pending  between  him  and 
the  said  Stevens,"  in  the  latter  part  of  the  first  answer  to  the 
second  set  of  interrogatories,  are  not,  and  were  not,  intended  as 
arguments.  The  fact  that  he  had  a  contract  with  Stevens  under 
which  he  claimed  half  the  money  recovered,  was  no  argument. 

But  there  is  another  view  of  this  matter :  if  the  money 
received  under  the  Florida  treaty,  above  twelve  thousand  dol- 
lars, would  be  the  right  of  Stevens  as  part  owner,  and  above 
twenty-eight  thousand  would  go  to  the  assignees  of  James  Yard, 
to  be  distributed  among  his  creditors  :  that  is,  creditors  before  his 
bankruptcy,  was  Stevens  one  of  such  creditors,  and  to  what 
amount?  If  he  was, he  is  entitled  to  a  dividend, and  that  divi- 
dend, for  anything  we  see  in  this  cause,  is  as  much  in  the  hands 
and  possession  of  James  Yard,  and  as  much  liable  to  this  attach- 
ment, as  the  part  allotted  to  Edward  Stevens  by  name.  I  say 
for  anything  we  see.  I  understand  the  wdiole  of  this  money  to 
have  been  in  the  hands  of  James  Yard  when  the  attachment 
was  laid.  Whether  this  dividend,  if  there  is  any  due,  can  be 
recovered  from  the  garnishee,  in  this  proceeding,  or  must  be 
sought  for  from  the  assignees  of  James  Yard,  or  is  due  to  the 
assignees  of  Stevens ;  or  whether  Stevens  has  any  assignees, 
must  depend  on  matters  not  known  to  this  court,  and  I  give  no 
opinion  about  them. 

It  will  appear  from  what  has  been  said,  that  in  my  opinion 
the  plaintiff  ought  to  have  been  permitted  to  prove  more  in  the 
hands  of  the  garnishee,  than  was  admitted,  if  he  could  so 
prove;  that,  as  to  any  claim  of  the  garnishee  to  the  property  or 
money  in  his  hands,  he  w^as  bound  to  prove  his  right  to  it  by 
other  testimony  than  his  own  oath ;  and  that  the  plaintiff  had  a 
right  to  rebut  that  proof  or  any  statement  on  that  subject,  by 
the  garnishee  himself,  by  any  legal  proof  admissible  in  any  other 
cause  between  contending  parties ;  for  I  repeat,  that  where  the 
garnishee  admits  the  recei[)t  of  goods  or  money,  but  sets  up  a 

195 


176  SUPREME  COURT  [PhUaddpkia, 

[Adium  »,  Yard.] 

right  to  retain  it,  the  suit  is  from  thenceforth  one  between  the 
plaintiff  and  garnishee,  in  substance  and  almost  in  form. 
r*l  771  *Tlie  act  of  1789  contemplates  a  judgment  against  the 
L  -I  garnishee,  if  he  refuses  to  answer,  or  his  answers  as  to 
what  is  in  his  hands  are  not  full,  direct,  and  true ;  and  I  have 
said,  whether  they  are  so,  may,  and  often  must  be  decided  by  a 
jury.  Whether  the  jury  ought  or  can  give  a  verdict  against  him 
for  the  whole  of  the  plaintiff's  demand,  if  they  find  that  his 
answers  are  not  full,  direct,  and  true,  has  not  been  discussed, 
and  I  do  not  wish  to  give  a  binding  opinion  on  this.  I  should 
suppose  there  were  cases  in  which  they  might  and  ought  to  do 
so,  but  that  this  would  only  be  where  they  found  a  plain  inten- 
tion to  conceal  or  mislead  as  to  the  amount  in  the  hands  of  the 
garnishee,  but  by  no  means  on  account  of  the  garnishee  failing 
to  support  his  own  claim  of  retaining  for  himself.  It  is  for  con- 
cealing the  goods  in  his  possession  that  this  penalty  is  inflicted  ; 
not  for  setting  up  an  unsupported  claim  to  those  goods. 

Another  and  most  important  question  arises  in  another  part 
of  this  cause.  The  deed  of  assignment  by  Stevens  has  some 
unusual  clauses ;  no  sales  are  to  be  made  of  the  real  estate  for 
three  years  from  the  date  of  the  instrument.  It  also  appears 
by  this  instrument  and  the  indorsement,  that  Stevens  was  liable 
for  above  ninety  thousand  dollars  on  James  Yard's  account ;  and 
it  provides  that  if  James  Yard  or  his  assigns,  paid  or  discharged 
this  debt  within  three  years,  the  assignment  was  not  to  have 
effect ;  but  Stevens'  estate  was  to  be  restored  to  him  in  the  same 
manner  he  held  it  before  the  assignment. 

As  I  understand  the  law,  either,  and  a  fortiori  both  these 
clauses  render  this  deed,  in  the  words  of  the  law,  utterly  void, 
frustrate,  and  of  no  effect.  If  this  is  not  to  delay  and  hinder 
creditors,  to  drive  them  to  compromises,  to  releases,  to  defeat 
their  claims  and  prostrate  their  rights,  I  do  not  see  what  would 
have  those  effects.  Assignments  by  debtors  have  been  supported 
in  this  state  under  circumstances,  and  containing  clauses  which 
would  avoid  them  in  any  other  country  governed  by  the  same 
laws,  and  as  I  believe,  clearly  against  both  the  letter  and  spirit 
of  the  law.  An  unwillingness  to  disturb  and  unsettle  many 
assignments  made  and  acted  upon  before  any  of  those  cases  were 
brought  before  the  court,  led  to  those  decisions.  The  decided 
cases  have  given  a  sanction  as  far  as  tkey  have  gone.  I  do  not 
agree  to  go  one  jot  further.  If  assignments  have  been  made 
not  sanctioned  by  decision,  I  do  not  agree  to  give  them  my 
sanction ;  for  we  must  stop  somewhere  :  we  must,  at  some  point 
and  at  some  time  say,  no  matter  how  many  have  violated  the  law 
or  how  long  it  has  been  acquiesced  in  ;  the  law  has  said  the  deed 
is  utterly  void,  and  we  must  say  so  also ;  and  if  a  debtor  can 
196 


Jam.  24,  1829.]      OF  PENNSYLVANIA.  177 

[Adlum  V.  Yard.] 

assign  his  property — keep  his  creditors  from  touching  it  for  three 
years,  he  may  for  thirty,  there  is,  in  fact,  little  difference ;  the 
creditor,  iu  most  instances,  will  be  ruined  or  prevented  in  some 
way  from  getting  his  debt  as  effectually  in  the  one  case  as  in  the 
other. 

But  it  has  been  argued  that  this  deed  has  been  confirmed  or 
rather  ^rendered  valid  by  some  acts  of  the  plaintiff  iu  r*  170-1 
this  cause,  at  least  valid  as  to  him,  and  a  case  has  been  L  -• 
cited  where  a  deed  of  a  married  woman  which  was  void,  had 
been  rendered  valid  by  a  delivery  after  she  became  sole.  It 
would  be  more  correct  to  say  that  a  new  deed  after  she  became 
sole,  conveyed  the  land.  A  deed  takes  effect  from  the  delivery, 
before  the  second  delivery  it  was  no  deed ;  after  the  second 
delivery,  it  was  a  deed  from  that  time.  If  there  is  any  case 
where  a  deed  made  void  by  a  positive  law  has  ever  been  held 
valid,  it  has  not  been  cited,  and  among  the  many  decisions  on 
the  law  in  question,  I  can  find  no  dictum  that  such  a  deed  can 
ever  become  valid.  Who  can  give  it  validity  ?  All  the  creditors, 
it  is  said,  may  agree  beforehand  to  such  a  deed.  Be  it  so ;  but 
then  the  case  of  a  contract  with  creditors  is  presented,  and  not 
a  deed  to  delay  and  defraud ;  then  it  would  be  a  stay  of  execu- 
tion by  creditors,  not  one  imposed  on  them. 

But  they  may  agree  afterwards.  They  may,  I  admit,  agree 
not  to  object  to  it ;  but  they  must  all  agree.  If  one  does  not, 
he  may  treat  the  deed  as  void  and  take  the  property.  In  such 
a  case  what  is  to  become  of  those  who  had  agreed  or  were 
willing  to  agree  ? — They  get  nothing.  But  did  they  agree  to 
this  ? — You  must  let  the  court  see  their  agreement  before  the 
extent  and  effect  of  it  can  be  decided  on.  If  the  agreement  is 
written,  the  court  decide  on  it ;  if  by  parol,  a  jury  must  decide 
whether  such  agreement  was  made,  and  what  it  was,  before  a 
court  can  say  what  the  effect  of  it  is. 

But  it  is  said  the  plaintiff  who  has  received  money,  a  part  of 
his  debt,  cannot  now  say  the  deed  is  void,  and  his  receipts  show 
that  he  received  money  from  these  assignees.  A  creditor  to 
whom  three  thousand  dollars  is  due,  may  be,  and  often  is  glad 
to  get  a  part  of  it  from  any  source ;  he  may  be  in  want,  at  the 
door  of  a  jail,  or  his  family  starving.  (I  do  not  speak  of  this 
case,  for  I  do  not  know  the  facts.)  He  may  be  deceived,  misin- 
formed, he  may  not  have  seen  the  deed  : — is  his  receipt  of  money 
in  all  cases,  under  all  circumstances  to  bind  him  ? — If  not,  and 
there  may  be  any  case  in  which  he  would  not  be  bound,  the 
court  were  wrong  in  taking  this  matter  from  the  jury.  But  it 
is  said  a  man  cannot  affirm  and  disaffirm  the  same  thing.  I 
admit  he  cannot  do  so  at  the  same  time ;  but  he  may  at  one 
time,  under  a  mistake,  treat  a  deed  or  will  as  valid,  and  not  be 

197 


178  .  SUPRE^IE   COURT  [Philadelphia, 

[Adlum  V.  Yard.] 

boiiTul  to  admit  it  to  be  so  at  all  times  and  with  other  infor- 
mation. 

A  man  who  accepts  a  small  legacy,  mnch  less  than  what  would 
be  his  distributive  share  of  an  estate,  and  does  so  because  he  has 
been  told  there  is  a  will,  is  not  precluded  from  claiming  more 
when  he  finds  there  was  no  will,  or  that  it  was  void  because  the 
testator  was  insane  when  it  was  made,  or  an  infant,  or  that  it 
was  inoperative  because  only  one  witness  could  be  found  who 
could  prove  it.  A  person  cannot  hold  what  he  has  got  under  a 
deed  or  will,  and  which  he  would  not  have  gotten  but  for  such 
r*l  7Q1  ^^^  ^^  yvi\l,  and  *still  recover  what  he  would  be  entitled 
L  J  to,  independent  of  such  instrument.  But  on  accounting 
for  what  he  has  received  under  a  mistake,  and  admitting  it  to 
have  been  received  under  a  mistake,  he  may  get  what  by  law  he 
is  entitled  to  in  addition.  This  generally,  length  of  time,  or 
other  circumstances  may  form  exceptions. 

If  a  creditor  under  a  mistake,  or  from  misrepresentation,  has 
signed  a  release,  he  may  be  relieved  from  it.  I  do  not  see,  then, 
how  he  can  be  absolutely  precluded  by  an  act  in  pais,  the  most 
equivocal  of  all  possible  ratifications.  And  I  do  not  agree  that 
creditors  who  have  a  right  independent  of  the  deed  or  will,  are 
put  to  their  election.  They  may  take  what  is  devised  or  con- 
veyed for  payment  of  debts,  and,  if  not  satisfied,  resort  to  other 
property  for  the  balance.  To  them  the  doctrine  of  election  does 
not  apply,  as  it  does  to  volunteers,  or  persons  who  but  for  the 
instrument  would  have  no  claim. 

I  would  say,  then,  that  this  deed  was  totally  void,  and  not 
validated  by  any  act  done,  taking  it  in  the  strongest  sense  against 
the  plaintiff;  but,  if  it  could  be  validated,  that  the  act  of  receiv- 
ing part  of  his  debt  was  not  such  an  act, — at  least,  that  being  a 
matter  in  pais,  it  must  be  left  to  a  jury,  and  not  decided  at  once 
by  the  court. 

I  think,  also,  the  question  whether  the  sums  for  which  Dr. 
Stevens  was  responsible  for  James  Yard  were  discharged,  Avas 
open  to  investigation,  if  the  deed  was  ever  good  ;  and  that  it  was 
proper  to  inquire  whether  the  supposed  assignees  of  Stevens 
ever  acted ;  and,  if  they  did,  when  they  ceased  to  act ;  and 
how  far  they  have  abandoned  the  trust,  and  the  trust  property 
might  be  material  in  this  case.  I  know  nothing  of  the  circum- 
stances of  this  case ;  but  I  conceive  it  possible,  that  a  case  may 
exist  where  the  assignees  have  totally  abandoned  the  property, 
or  never  intermeddled  with  it ; — in  which  case  it  would  be  great 
injustice  to  interpose  their  names,  and  use  their  neglected  or 
abandoned  title  to  defeat  a  creditor  pursuing  his  right  according 
to  law. 

It  is  not  enough  that  a  man  has  executed  a  deed  of  trust  with- 
198 


Jan.  24,  1829.]      OF  PENNSYLVANIA.  179 

[Adlum  V.  Yard.] 

out  consideration,  and  has  acted  as  if  it  was  accepted  by  tliem 
iu  some  particulars,  or  has  done  some  acts  in  their  names,  or 
procured  some  one  to  do  so.  Where  a  trust  has  really  been 
created  for  a  good  and  lawful  purpose,  chancery  will  not  suffer 
it  to  fail  for  want  of  a  trustee ;  but  I  suspect  we  have  many 
trusts  of  a  kind  unknown  to  any  chancellor ;  and  this  court  has 
decided,  that  a  conveyance  to  trustees  for  payment  of  debts,  of 
personal  property,  of  which  no  possession  was  deliyered,  and 
where  the  debtor  went  on  to  act  for  many  months,  as  before  the 
conveyance,  was  totally  void,  and  the  goods  were  as  subject  to  the 
execution  of  a  creditor  as  before  the  conveyance.  I  would  then 
permit  an  inquiry  whether  such  acts  have  been  done  as  prove 
whether  there  was  an  acceptance  of  the  trust ;  and  that  it  is, 
or  is  not,  and  has  not  been  treated  both  by  Dr.  Stevens,  and 
the  assignees  as  at  an  end — and  how  long ; — for  where  there  is 
no  Court  *of  Chancery  to  compel  a  discovery  or  a  recon-  r^,  f.,-, 
veyance,  we  must  attain  the  object  in  some  other  way,  L  -* 
and  not  lock  up  an  estate  for  ever  by  a  conveyance  not  operative. 
All  this,  however,  would  not  be  necessary,  if,  as  I  hold,  the  con- 
veyance was  void  iu  its  creation. 

Tod,  J.,  concurred  with  HusroN,  J.,  except  as  to  the  deed  not 
being  rendered  valid  by  the  subsequent  acts  of  the  creditors. 

Smith,  J.,  was  absent.  y 

Judgment  reversed,  and  a  venire  fadae  de  novo  awarded. 

Cited  by  Counsel,  1  Penn.  R.  330 ;  3  Penn.  R.  126 ;  5  R.  147, 223 ;  5  Wli.  62 ;  3  W. 
187;  6W.  248;  1W.&  S.298;  4  W. & S. 22, 391 ;  6W.&S.73;  8W.&S.431; 
2  Barr,  479 ;  3  Barr,  149 ;  7  Barr,  232 ;  2  J.  39,  298,  326 ;  1  H.  185, 307, 366, 535 ; 
2  H.  440 ;  5  H.  270,  348  ;  9  H.  439 ;  2  C.  65 ;  7  C.  56 ;  6  Wright,  SS5 ;  9  Wright, 
18,25;  1  S.  201;  3S.  492;  IG.  154;  7  S.  500;  8  S.  Ill;  8S.  487;  9S.  27;  9 
S.  480;  20  S.  179;  26  S.  282;  26  S.  294;  30  S.  151;  1  W.  N.  C.  164;  2  W.  N. 
C.  9;  10  W.  N.  C.  39 ;  12  W.  N.  C.  167,  169. 

Cited  by  the  Court,  1  Penn.  R.  42  ;*  2  Penn.  R  92 ;  3  Penn.  R.  91 ;  6  W.  95 ; 

8  W.  281 ;  6  W.  &  S.  311 ;  7  W.  &  S.  125 ;  4  Barr,  195,  449 ;  5  Barr,  176,  480 ; 

9  Barr,  299;  10  Barr,  314;  1  J.  408;  2  H.  126;  7  H.  420;  1  Par.  474;  2  Par. 
147;  1  C.  287 ;  8  Wright,  14;  12  Wright,  381;  3  S.  352;  6  S.  128;  7  K  222. 

In  Hays  v.  Heidelberg,  9  Barr,  207,  the  Court  say  the  case  of  Adlum  v.  Yard 
pushes  the  doctrine  of  election  by  creditors  as  far  as  it  safely  can. 

One  knowing  his  rights,  who  claims  a  benefit  under  a  transaction  wiiich  lie 
might  avoid,  thereby  ratifies  it  and  is  equitably  estopped  from  avoiding  the 
transaction  to  the  prejudice  of  others.  This  has  been  affirmed  in  voidable  as- 
signments for  creditors :  Crowell  v.  Meconkey,  5  Barr,  168  ;  Thomas  v.  Phillips, 
9  Barr,  355 ;  also  where  one  receives  the  proceeds  of  a  judicial  sale  which  he 
might  have  avoided,  whether  a  sheriff's  sale :  Stroble  v.  Smith,  8  W.  281 ;  Ham- 
ilton V.  Hamilton,  4  Barr,  193 ;  Spragg  v.  Shriver,  1  C.  282 ;  or  a  sale  under 
the  order  of  the  Orphans'  Court:  Wilson  j'.  Bigger,  7  W.  &  S.  111.  Where  the 
proceedings  are  valid  the  principle  here  discussed  applies  a  fortiori:  W^ilkins  v. 
Anderson,  1  J.  408.  Entering  exceptions  to  a  report  of  distribution,  but  after- 
wards withdrawing  them,  does  not  work  an  estoppel :  Reinhard  v.  Keenbartz,  6 
W.  95. 

Whether  a  void  sale  may  be  ratified  by  a  receipt  of  its  proceeds  is  a  more 
perplexed  question.  In  Smith  v.  Warden,  7  11.  424,  it  is  said  that  this  princi- 
ple of  estoppel  applies  to  a  void  as  well  as  a  voidable  sale,  and  see  Crowell  v. 

199 


180  SUPREME  COURT  {Pkiladdphm, 

[Adlum  V.  Yard.] 

Meconkey,  supra.  In  Gardner  v.  Sisk,  4  S.  500,  a  directly  contrary  doctrine 
is  announced,  and  Crowell  v.  Meconkey  overruled.  But  in  Duff"?'.  Wynkoon,  24 
S.  300,  300,  Smith  v.  Warden  is  cited  as  authority.  The  real  difficulty  perhaps 
lies  in  the  question,  "What  is  a  void  sale?''  and  the  cases  above  may  be  dis- 
tingiiishable  under  this  view ;  see  Gardner  v.  Sisk,  supra. 

The  doctrine  has  lately  been  applied  to  privileges  enjoyed  under  Acts  of 
Aasenibly,  and  the  party  estopped  from  setting  up  that  they  are  unconstitutional : 
Bidwell  I'.  Pittsburgh,  4  N.  412 ;  McKnight  v.  Pittsburgh,  10  N.  273. 

Another  point  arises  from  the  cases  cited,  namelv,  must  the  benefit  be  re- 
ceived immediately  by  the  person  against  whom  the  estoppel  is  set  up  ?  If 
received  by  one  under  whom  the  present  party  claims  it  is  sufficient,  Maple  r. 
Kussart,  3  S.  348,  but  the  fact  that  the  judgment  creditors  of  the  party  receive 
the  benefit  does  not  estop  the  partv  himself :  Gardner  v.  Sisk,  4  S.  506.  Accord- 
ing to  the  earlier  cases  a  receipt  by  a  guardian  for  his  ward  is  within  the  rule, 
Wilson  V.  Bigger,  7  W.  &  S.  Ill,  or  by  his  committee  for  a  lunatic,  Beeson  i*. 
Beeson,  9  Barr,  279 ;  but  W^arden  n.  Alexander,  2  H.  126,  overthrows  both  these 
cases.  The  fact  that  one  has  claimed  under  a  voidable  assignment  as  a  creditor 
does  not  estop  him  as  a  trustee  in  insolvency :  Weber  v.  Sammel,  7  Barr,  499 ; 
Thomas  v.  Phillips,  9  Barr,  355. 


[*181]  *[Philadelphia,  Jjlsjjary  24,  1829.] 

Ehrenzeller  against  The  Umon  Canal  Company. 

IN   ERROR. 

The  secretarr  of  the  Union  Canal  Company  of  Pennsylvania,  incorporated 
by  the  act  of  the  2d  of  April,  1811,  was  such  an  officer,  within  the  meaning 
of  the  supplemental  act  of  the  29th  of  March,  1819,  as  the  Legislature  intended 
should  receive  no  salary  until  the  works  were  actually  recommenced  upon  the 
canal. 

Such  an  officer  can  claim  no  compensation  for  services,  upon  a  quantum 
meruit. 

The  act  of  the  29th  of  March,  1819,  does  not  violate  the  10th  section  of  the 
1st  article  of  the  Constitution  of  the  United  States. 

On  the  return  of  a  writ  of  error  to  the  District  Court  for  the 
city  and  county  of  Philadelphia,  it  appeared  that  the  plaintiff 
in  error,  George  Ehrenzeller,  brought  this  action  of  assumpsit 
against  the  Union  Canal  Company,  to  recover  a  compensation 
for  his  services  as  their  secretary,  from  the  17th  of  October, 
1818,  to  the  21st  of  May,  1821. 

The  declaration  contained  four  counts;  the  first  of  which 
claimed  a  sura  of  money,  "  for  the  pay  of  the  said  George  be- 
fore that  time  and  then  due  and  payable,  from  tlie  said  defend- 
ants to  the  said  George  for  the  services  of  the  said  George, 
before  that  time,  by  him,  the  said  George,  rendered  and  per- 
formed, as  secretary  of  the  Union  Canal  Company,  duly  ap- 
pointed before  that  time,  agreeably  to  the  charter  and  by-laws 
of  the  said  company." 

The  second  count  was  for  work  and  labour,  care  and  dili- 
200 


/an.  24, 1829.]       OF  PENNSYLVANIA.  181 

[Ehrenzeller  v.  The  Union  Canal  Company.] 

gence  of  the  said  George,  expended  upon  the  business  of  the 
said  company,  in  preserving  their  records,  preparing  their  con- 
tracts, preserving  their  muniments  of  property,  &c. 

The  third  was  on  a  quantum  meruit  for  work  and  labour,  care 
and  diligence,  as  secretary  of  the  defendants. 

The  fourth  count  was  on  an  insimul  computassent. 

The  defendants  pleaded  non-assumpserunt,  and  payment,  with 
leave  to  give  special  matter  in  evidence. 

The  case,  as  disclosed  by  the  evidence  given  on  the  trial,  was 
as  follows  : 

The  Union  Canal  Company  of  Pennsylvania  was  incorpo- 
rated by  an  Act  of  Assembly  passed  the  2d  of  April,  1811.  (5 
Sra.  L.  266.)  By  the  6th  section  of  that  act,  the  stockholders 
were  directed  to  choose  five  managers,  one  of  whom  was  to  be 
president  of  the  company.  The  president  and  managers  were 
authorized  to  appoint  a  secretary,  engineers,  and  such  other 
officers,  and  to  allow  them  such  compensations  as  they  should 
fiud  necessary  and  expedient. 

In  the  year  1811,  the  president  and  managers  were  elected 
by  the  stockholders,  and  the  company  organized.  On  the  24tli 
of  July,  *1811,  the  salaries  of  the  president  and  mana-  r^Too-i 
gers  were  fixed  by  the  stockholders,  and  on  the  16th  of  ^  -^ 
November,  1813,  their  salaries  were  increased,  that  of  the  presi- 
dent to  fifteen  hundred  dollars,  and  those  of  the  managers  to 
three  hundred  dollars  per  annum. 

On  the  26th  of  July,  1811,  a  secretary  was  appointed,  w^ho 
resigned  in  October,  1816,  when  the  president  and  managers 
appointed  the  plaintiff  their  secretary.  No  particular  sum  was 
fixed  by  a  vote  of  the  board,  as  a  salary  for  the  secretary ;  but  it 
appeared  that  three  hundred  dollars  per  annum  had  been  allowed 
to  that  officer ;  and,  at  that  rate,  the  plaintiflF  was  paid  up  to 
the  17th  of  October,  1818.  The  plaintiff  held  the  situation  of 
secretary  until  the  21st  of  May,  1821,  during  which  period  he 
discharged  his  duties  with  fidelity  and  to  the  satisfaction  of  his 
employers.  In  addition  to  keeping  the  minutes  of  the  Board  of 
Managers,  he  had  the  principal  care  of  the  archives  of  the 
company,  was  required  to  be  present  at  all  the  transfers  of 
stock,  and  drew  several  contracts  with  the  managers  of  the  dif- 
ferent classes  of  the  Union  Canal  Lottery. 

The  plaintiff  produced  his  account,  audited  and  settled  by  the 
proper  officers  of  the  company. 

The  defendants  admitted  the  plaintiff's  right  to  recover  for 
services  performed  prior  to  the  29th  of  March,  1819 ;  and 
against  the  residue  of  his  claim,  they  relied,  for  a  defence, 
upon  the  7th  section  of  the  act  of  that  date,  (7  Sm.  L.  228), 
entitled,  "An  act  supplementary  to  an  act,  entitled  'An  act  to 

201 


182  SUPREME  COURT  [Fhiladelphia, 

[Ehrenzeller  v.  The  Union  Canal  Company.] 

incorporate  the  Uuiou  Caual  Compauy  of  Pennsylvania/  which 
is  in  tiiese  words :  '  Be  it  further  enacted,  &c.,  That,  from  and 
after  tlie  passage  of  this  act,  no  compensation  shall  be  allowed 
by  the  said  company  to  its  officers,  until  the  works  are  actually 
recommenced  upon  the  canal ;  after  which  time  the  salaries  may 
be  regulated  by  the  stockholders  in  the  customary  manner : 
Provided,  That  if  the  said  work  shall  be  suspended  or  inter- 
rupted for  the  space  of  three  mouths,  the  salari&s  allowed  to  the 
said  officers  shall  cease  from  the  time  of  such  suspension,  and 
until  the  work  be  recommenced.' " 

On  the  12th  of  July,  1819,  a  letter  was  sent  by  the  commis- 
sioners named  in  the  act  of  the  29th  of  March  preceding,  to 
the  president  and  officers  of  the  company,  informing  them  that 
their  efforts  to  procure  additional  subscriptions  had  entirely 
failed ;  declining  to  make  any  further  attempts  to  procure  them, 
and  recommending  the  raising  of  money  by  lottery,  which  was 
accordingly  done. 

The  lottery  fund  amounted,  on  the  21st  of  May,  1821,  to 
upwards  of  seventy  thousand  dollars,  which  had  accumulated 
in  part  prior,  and  in  part  subsequent  to  the  29tli  of  March,  1819. 
The  comjiany  had  also  a  considerable  real  estate,  which  had 
been  taken  for  the  route  of  the  canal,  before  their  proceedings 
had  ceased  in  consequence  of  the  expenditure  of  all  their  funds 
derived  from  private  subscriptions. 

In  consequence  of  the  act  passed  on  the  26th  of  March,  1821, 
(7  Sm.  L.  393),  which  pledged  the  aid  of  the  state  to  the  work, 
r*i  k'll  subscriptions  *were  obtained  under  the  act  of  the  29th  of 
L  ^^'^-l  March,  1819,  and  on  the  11th  of  April,  1821,  the  fact 
was  communicated  to  the  president  and  officers  of  the  com- 
pany, by  a  letter  from  the  commissioners  ;  whereupon,  there  not 
being  time  to  call  a  meeting  of  the  stockholders,  the  president 
and  officers  ordered  two  papers  to  be  prepared,  to  l)e  handed  for 
signature  to  the  individual  stockholders,  declaring  their  accept- 
ance of  the  new  act.  The  board  fixed  the  21st  of  May,  1821, 
for  the  meeting  of  the  stockholders  to  elect  a  new  board ;  and 
this,,  it  was  contended  for  the*  defendants,  was  their  first  accept- 
ance of  the  provisions  of  the  act  of  the  29th  of  March,  1819. 

,On  the  21st  of  May,  1821,  a  meeting  of  the  stockholders  was 
held,  when  officers  were  elected,  agreeably  to  the  provisions  of 
the  act  of  1819.  The  plaintiff  continued  to  hold  the  situation, 
and  perform  the  duties  of  secretary,  until  the  21st  of  May, 
1821,  the  original  contract  between  him  and  the  president 
and  officers  of  the  company  never  having  been  changed  by  the 
parties. 

The  evidence  being  closed,  the  case  went  to  the  jury  under 
the  following  charge  from  the  President  Judge : — 
202 


/an.  24, 1829.]      OF   PENNSYLVANIA.   ,  183 

[Elirenzeller  v.  The  Union  Canal  Company.] 

"  The  questions  of  law  arising  in  this  case  have  been  deter- 
mined on  a  former  occasion  by  tliis  court,  and  I  have  only  to 
express  their  opinion  to  you,  that  the  plaintiif  may  be  enabled 
to  except  to  my  charge,  and  have  his  bill  of  exceptions  and  writ 
of  error  to  the  Supreme  Court.  I  state  the  law  to  be — That 
upon  the  facts  in  evidence,  in  this  case,  the  plaintiff  cannot  re- 
cover from  these  defendants  any  compensation  under  either 
count  in  this  declaration  for  the  services  rendered  after  the  29th 
of  March,  1819.  The  law  upon  the  facts  is  not  altered  by  the 
manner  of  declaring  in  the  second  and  third  counts  in  this  de- 
claration. Nor  is  the  plaintiff's  case  the  better  by  reason  of  the 
examination  and  approval  of  his  account.  He  is  entitled  to  re- 
cover, if  at  all,  by  virtue  of  his  appointment  as  secretary  on  the 
1st  of  April,  1816,  and  because  of  the  services  which  he  ren- 
dered in  that  character.  He  is  not  entitled  by  law  to  any  com- 
pensation for  his  services  as  secretary  to  the  Board  of  jNIanagers 
of  the  company,  afler  the  29th  of  March,  1819.  Your  verdict, 
therefore,    should   be   for  $  ,   with    interest,    being    the 

amount  due  him  on  the  29th  of  March,  1819,  and  the  interest." 

To  this  charge  the  plaintiff's  counsel  excepted,  and  sued  out 
a  writ  of  error. 

W.  M.  Meredith  and  Saott,  for  the  plaintiff  in  error. 

1.  If  the  7th  section  of  the  act  of  the  29th  of  March,  1819, 
be  construed  to  extend  to  the  present  case,  it  is  utterly  void, 
because  it  is  in  violation  of  the  17th  section  of  the  9th  article  of 
the  Constitution  of  Pennsylvania,  and  the  first  part  of  the  10th 
section  of  the  1st  article  of  the  Constitution  of  the  United  States. 
It  violated,  in  the  first  place,  the  contract  created  by  the  char- 
ter between  the  legislature  and  the  company,  which  was  a  pri- 


[n84] 


:ate  corporation,  *the  rights  of  which  cannot  be  impaired 
W'ithout  its  own  consent.  The  king  cannot  interfere  with 
the  chartered  rights  of  a  corporation  without  trial  and  judgment, 
nor,  on  the  same  principle,  can  the  legislature  of  Pennsylvania, 
without  the  consent  of  the  corporation.  No  consent  was  given  by 
the  Union  Canal  Company  to  the  act  of  the  29th  of  March,  1819, 
until  the  21st  of  May,  1821 ;  at  which  period  the  services  of  the 
plaintiff  ceased.  And,  if  such  consent  had  been  given,  it  would 
have  been  in  violation  of  the  contract  entered  into  by  the  company 
with  the  plaintiff,  to  pay  him  the  compensation  agreed  upon  so 
long  as  he  should  continue  in  office,  and  until  he  should  have 
notice  of  removal.  4  Wheat.  207,  656,  659,  662,  667,  682, 
711  ;  8  Wheat.  84,  92 ;  3  Burr.  1661 ;  3  Kyd  on  Corp.  65. 

But  the  court  will,  if  possible,  give  such  a  construction  to  the 
act  of  assembly,  as  will  reconcile  it  with  the  Constitution ;  and 
in  this  there  is  no  difficulty.     In  the  first  place,  it  was  not  in- 

203 


184  SUPREME  COURT  [Philadelphia, 

[Elirenzeller  v.  The  Union  Canal  Company,] 

tended  to  apply  to  tlie  old  oflBcers  of  the  company.  The  legis- 
lature contemplated  a  reorganization  of  the  company,  and  in- 
tended to  prevent,  in  future,  the  payment  of  salaries  where  no 
services  were  performed.  It  Avas  not  their  intention  to  go  back, 
and  take  away  salaries  from  officers  who  were  then  receiving 
them. 

But,  in  the  second  place,  if  the  act  was  intended  to  embrace 
the  old  officers,  it  did  not  extend  to  the  secretary.  He  was  not 
sucli  an  officer  as  came  within  the  provisions  of  the  law,  which 
referred  to  those  who  received  large  salaries  and  performed  no 
duties..  He  was  the  only  officer  belonging  to  the  corporation 
who  received  a  small  salary,  and  performed  very  laborious  duties. 
If  the  business  of  the  company  was  neglected,  it  was  not  his 
fault.  He  had  nothing  to  do  with  the  direction.  The  evil  to 
be  remedied,  was,  that  the  works  upon  the  canal  had  ceased ; 
and  the  object  of  the  law  was,  that  they  should  be  recommenced. 
To  effect  this,  the  act  of  assembly  provided  a  stimulus  to  those 
who  had  the  management  of  the  concerns  of  the  corporation. 
Its  provisions  should,  therefore,  be  confined  to  officers  of  that 
character,  and  not  extended  to  mere  ministerial  officers,  sucli 
as  the  secretary,  engineers,  &c.,  who  had  no  control  over  the 
affairs  of  the  company,  and  without  whose  previous  services  the 
works  could  not  be  recommenced. 

The  provisions  of  the  act  of  assembly,  relative  to  the  salaries 
of  officers,  clearly  show  that  the  secretary  was  not  within  the 
view  of  the  legislature.  Upon  the  recommencement  of  the 
works,  the  salaries  of  the  officers  were  to  be  regulated  by  the 
stockholders  in  the  customary  manner.  The  officers  referred  to 
must,  therefore,  have  been  those  whose  salaries  it  had  been  cus- 
tomary for  the  stockholders  to  regulate,  and  not  the  secretary 
and  engineers,  whose  salaries  had  never  been  regulated  by  the 
stockholders,  but  by  the  managers  in  whom  their  appointment 
was  vested.  They  were  properly  not  the  officers  of  the  com- 
pany, but  of  the  managers. 

But,  if  the  secretary  be  comprehended  by  the  act,  the  only 
r*185l  *^6asonable  construction  of  it  is,  that  salaries  should  not 
•-  J  be  paid  until  after  the  recommencement  of  the  works ; 
not  that  no  compensation  should,  at  any  time,  be  allowed  for 
services  rendered  before  that  period.  The  most  laborious  part 
of  the  business  was  to  restore  to  order  the  deranged  affairs  of 
the  company.  Active  exertions  were  to  be  made ;  contracts  to 
be  entered  into ;  skill,  prudence,  and  diligence  were  to  be  exer- 
cised; the  president  was  restrained  from  pursuing  any  other 
mode  of  gaining  a  livelihood.  Can  it  be  pretended,  that  for  all 
these  exertions  and  sacrifices,  no  compensation  whatever  was  to 
be  made  ?  or  could  it  be  expected,  that  if  none  were  to  be  made, 
204 


Jan.  24, 1829.]      OF  PENNSYLVANIA.  185 

[Elirenzeller  v.  The  Union  Canal  Company.] 

the  works  would  ever  be  recommenced?  Some  of  the  most  im- 
portant and  laborious  of  the  duties  of  the  secretary,  such  as  the 
drawing  of  contracts,  and  other  preparatory  services,  must  ne- 
cessarily have  been  performed  before'  the  actual  recommence- 
ment of  the  works.  Tliose  which  were  to  be  performed  after- 
wards, were  comparatively  light.  Upon  the  principle  by  which 
it  is  attempted  to  cut  off  the  salary  of  the  secretary,  the  survey- 
ing engineer,  upon  whose  skill,  capacity,  and  fidelity,  the  whole 
success  of  the  work  must  have  depended,  would  be  denied  any 
compensation  whatever  for  his  services,  since  those  services  must 
all  have  been  rendered  before  the  works  could  go  into  operation. 
The  intention  of  the  legislature  waa,  that  no  salaries  should  be 
paid  where  no  duties  were  performed.  The  former  were  to  de- 
pend upon  the  latter;  and  when  the  recommencement  of  the 
works  testified  that  duties  had  been  rendered,  compensation 
was  to  be  allowed,  as  well  for  services  previously,  as  for  those 
subsequently  performed. 

The  act  of  1819  continues  the  obligations  of  the  old  corpora- 
tion. All  the  privileges  and  immunities,  and,  consequently,  all 
the  burdens  of  the  old  company,  were  vested  in  the  new  one. 
Strictly  speaking,  it  was  not  the  creation  of  a  new  corporation, 
but  the  re-organization  of  the  old  corporation,  under  a  new  di- 
rection. The  defendants  admit  their  liability  for  services  ren- 
dered prior  to  1819,  and  therefore  are  precluded  from  saying 
they  are  not  bound  by  the  contracts  of  their  predecessors. 
They  cannot  take  all  the  property  and  all  the  benefits,  and 
throw  oif  the  debts  of  those  to  whom  they  succeed.  The  old 
board  acknowledged  the  plaintiff's  claim,  which  was  regularly 
passed  by  their  proper  accounting  officers. 

If  the  contract  cannot  be  enforced  for  the  salary  of  the  plain- 
tiff as  secretary,  he  is  entitled  to  recover  on  a  quantum  meruit, 
for  his  services  as  an  individual.  The  defendants  cannot  deny 
his  offi.cial  character,  in  order  to  deprive  him  of  his  salary,  and 
assert  that  character  to  prevent  his  recovering  a  just  compensa- 
tion for  services  actually  rendered. 

Binney,  for  the  defendants  in  error. — It  was  competent  to  the 
company  alone,  to  object  to  the  constitutionality  of  the  act  of 
assembly  by  which  they  were  remodelled ;  and  they  have  made 
no  objection.  From  the  lips  of  third  persons,  such  an  objection 
*cannot  come ;  nor  can  it  now  come  from  the  company  n^^ ^.^-, 
themselves,  because  they  have  accepted  the  charter,  ^  -■ 
not  merely  from  the  time  of  their  new  organization,  but  in  toto. 
Their  acceptance  has  a  retrospective  operation  from  the  date  of 
the  law.  To  say  otherwise,  would  be  to  permit  one  party  to 
adopt  a  contract  in  a  sense  different  from  what  the  other  party 

205 


186  SUPREME  COURT  [Philadelphia, 

[Ehrenzeller  v.  The  Union  Canal  Company.] 

intondcd ;  for  it  is  certain  the  legislature  intended  that  the  law 
should  go  into  operation  from  its  date.  The  question,  therefore, 
whether  the  legislature  had  power  to  pass  the  law,  though  by  no 
means  a  difficult  one,  does  not  arise.  The  company  nave  ac- 
cepted the  charter  unconditionally,  and  do  not  now  object.  The 
objection  is  raised,  by  a  third  person,  for  them,  and  without 
their  consent.  It  is  true,  that  if  he  has  a  contract  which  is 
violated  by  the  law,  he  may  assert  its  unconstitutionality.  But 
the  plaintiff"  never  had  an  express  contract  with  the  company 
after  1816,  when  he  was  appointed.  He  received  no  appoint- 
ment afterwards.  While  he  was  acting  as  secretary  in  1819, 
this  act  of  assembly  was  passed.  With  a  full  knowledge  of  its 
provisions,  he  goes  on  to  render  services,  without  any  new  ap- 
pointment or  contract  of  any  kind,  knowing  that  if  the  law  is 
valid,  he  cannot  be  paid.  AVhen,  therefore,  it  was  rendered 
valid  by  the  acceptance  of  the  company,  he  could  not  complain 
of  the  loss  of  his  salary,  because  he  acted  with  his  eyes  open, 
and  had  a  mere  implied  contract,  dependent  upon  the  acceptance 
or  non-acceptance  of  the  charter  by  the  company. 

As  to  the  construction  of  the  act.  Its  terms  are  plain,  and 
where  there  are  no  ambiguities,  the  court  should  make  no  subtle 
efforts  to  find  out  other  meanings  than  those  the  words  import. 
It  is  clear  from  the  bill  of  exceptions,  that  the  plaintiff"  never 
claimed  in  any  other  character  than  as  secretary.  There  was 
no  evidence  of  services  rendered  otherwise  than  as  secretary, 
and  the  opinion  of  the  District  Court  was,  that  he  could  not 
recover  upon  the  common  counts,  for  services  rendered  in  that 
capacity.  If  he  was  an  officer,  and  his  services  were  rendered 
as  such,  he  cannot  dodge  the  act  by  claiming  a  compensation 
on  a  quantum  meruit.  The  question  then  is,  was  he  an  officer  ? 
That  he  was  so  in  point  of  fact,  there  is  no  doubt ;  but  whether 
he  was  so,  within  the  meaning  of  the  act,  is  another  matter. 
It  is  said  that  he  was  not  the  officer  of  the  company,  but  of  the 
managers ;  but  the  minutes  show,  and  so  does  the  bill  of  excep- 
tions, that  whenever  anything  was  to  be  done  by  the  company, 
he  performed  it  as  their  secretary.  He  attended  the  meetings 
of  the  company,  and  superintended  the  transfers  of  stock. 
Besides,  the  managers  were  the  representatives  of  the  company, 
and  their  acts  were  the  acts  of  their  constituents.  The  bill  of 
exceptions  states  that  the  plaintiff"  in  error  was  appointed  by  the 
managers,  "  secretary  of  the  company,"  and  then  goes  on  to  say, 
that  he  was  entitled  to  compensation  for  his  services  aforesaid, 
that  is,  as  secretary  of  the  company.  The  distinction  between 
r*1871  ^^^g'^^ers  *and  officers  is  obvious,  and  need  not  be 
L  J  dwelt  upon.  Every  company  must  have  a  secretary, 
and  if  he  is  not  an  officer  of  the  company,  it  is  impossible  to 
206 


7a7i.  24, 1829.]       OF  PEXXSYLVANIA.  187 

[EhrenzellcT  v.  The  Union  Canal  Company.] 

imagine  who  is.  H '  is  more  identified  with  its  concerns  than 
any  other  officer.  He,  as  well  as  the  other  officers,  doubtless 
performed  some  services,  but  those  services  were  not  such  as  the 
legislature  thought  entitled  them  to  compensation.  They  de- 
clared, that  until  the  recommencement  of  the  works,  the  officers 
should  receive  no  salaries,  and  the  company  accepted  the  terms 
offered.  The  president,  managers,  secretary,  all  the  officers  of 
the  company  were  before  the  legislature  when  the  law  was 
passed,  and  no  distinction  was  made  between  them.  All  were 
considered  as  sufficiently  interested  in  the  concerns  of  the  cor- 
poration to  perform  the  services  preparatory  to  its  re-organiza- 
tion. Whether  the  officer  was  appointed  by  the  stockholders  or 
the  managers,  was  of  no  moment ;  the  object  being  to  cut  oif 
the  salaries  of  all  sinecure  officers,  no  matter  by  whom  ap- 
pointed, in  order  to  preserve  the  funds  for  the  future  operations 
of  the  company. 

It  is  said  the  act  was  intended  to  apply  to  officers  to  be  ap- 
pointed ;  but  such  an  interpretation  would  overturn  to  express 
language,  and  contravene  its  whole  object.  The  legislature 
have  said,  that  the  law  should  go  into  immediate  operation  ; 
and,  if  it  had  been  otherwise,  it  would  have  been  in  the  j)ower 
of  the  old  company  to  continue  the  old  abuses  as  long  as  they 
pleased. 

The  account  signed  by  the  auditor  and  counsel  avails  nothing. 
It  was  against  law,  and  of  no  effect;  and  it  would  have  been  the 
same  thinof  if  all  the  mauao-ers  had  acknowledg-ed  its  correctness. 
They  were  bound,  if  at  all,  not  as  individuals,  but  in  their  cor- 
porate ca])acity,  and  could  not,  by  their  approbation,  give  va- 
lidity to  that  which  was  contrary  to  law. 

The  opinion  of  the  court  was  delivered  by 

Rogers,  J. — On  the  2d  of  April,  1811,  the  legislature  passed 
the  act  to  incorporate  the  Unioii  Canal  Company  of  Pennsyl- 
vania; and,  by  the  28th  section,  gave  the  company  authority  to 
raise,  by  lottery,  three  hundred  and  fifty  thousand  dollars  ;  and 
provided,  that  the  profits  arising  from  the  lotteries  should  not 
form  a  capital  stock  of  the  company,  upon  which  any  dividend 
should  be  made  to  the  stockholders,  but  that  the  same  should  be 
considered  as  a  bounty  to  the  corparatiou,  to  enable  them  to 
make  the  tolls  as  low  as  possible.  The  company,  after  having 
commenced  the  work,  suspended  their  operations,  having  raised, 
and  continuing  to  raise,  large  sums  of  money  by  drawing  the 
lotteries  authorized  by  the  act.  In  the  annual  return  to  the 
legislature,  at  the  session  of  1819,  the  managers  made  a  state- 
ment of  their  accounts ;  in  which  it  appeared  that  large  salaries 
had  been  paid  and  were  paving  to  the  officers  of  the  conipanv, 

207 


187  SUPREME  COURT  [Philadelphia, 

[Ehrenzeller  v.  The  Union  Canal  Clompany.] 
wliile  little  or  no  duties  were  performed,  aud  that  out  of  the 
funds  (for  they  had  no  other,)  appropriated  by  the  legislature, 
for  the  special  purpose  of  making  the  tolls  as  low  as  possible. 
r*188l  ^^^  plaintiff  was  *the  secretary  of  the  company,  and  as 
•-  J  such  was  returned  in  the  statement  of  their  accounts, 
as  in  the  receipt  of  a  salary  of  three  hundred  dollars  per  annum. 
With  a  knowledge  of  these  facts,  which  are  alleged  in  the  pre- 
amble to  the  section  to  be  notorious,  and  for  the  purpose  of  pre- 
venting such  abuses  in  future,  the  legislature  enacted,  "  That 
from  and  after  the  passage  of  this  act,  no  compensation  shall  be 
allowed  by  the  company  to  its  officers  until  the  works  are  ac- 
tually recommenced  upon  the  canal ;  after  which  time  the  sala- 
ries may  be  regulated  by  the  stockholders  in  the  customary 
manner ;  Provided,  That  if  the  said  work  shall  be  suspended, 
or  interrupted  for  the  space  of  three  months,  the  salaries  al- 
lowed to  the  said  officers  shall  cease  for  the  time  of  such  suspen- 
sion, and  until  the  work  be  recommenced."  The  defendants 
interpose  this  seventh  section  of  the  act  of  the  29th  of  ISIarch, 
1819,  in  the  way  of  the  plaintiff's  recovery,  and  allege  that  he 
comes  within  its  words  and  spirit,  which  is  denied  by  the  plain- 
tiff; and  this,  with  the  constitutionality  of  the  act,  forms  the 
question  which  we  are  required  to  decide.  The  defendants  say, 
the  secretary  is  not  an  officer,  and,  if  not  an  officer,  that  he  is  the 
officer,  of  the  managers,  and  not  of  the  company.  With  this  I 
do  not  agree.  He  is  as  much  the  officer  of  the  corporation  as 
the  cashier  or  clerk  of  a  bank,  who  clearly  are  the  servants  of 
the  company,  and  not  of  the  directors,  by  whom  they  are  ap- 
pointed. And,  in  the  6th  section  of  the  act  of  the  2d  of  April, 
1811,  he  is  expressly  called  an  oflBcer;  for  it  is  provided,  that 
the  president  and  managers  shall  have  authority  to  appoint  a 
secretary,  engineer,  and  such  other  officers,  &c.,  and  allow  such 
compensation  as  they  may  find  necessary  and  expedient. 

But  the  plaintiff  further  contends,  that  although  he  may  be 
considered  an  officer,  in  the  strict  sense  of  the  word,  he  is  not 
such  an  officer  as  was  contemplated  by  the  act ;  that  the  legis- 
lature had  in  view  the  president  and  managers,  and  not  the 
secretary.  It  would  appear  to  me  to  be  strange,  that  if  the 
legislature  intended  to  discriminate  between  the  secretary  and 
others,  who  were  in  the  receipt  of  large  salaries  out  of  public 
moneys,  they  should  not  have  expressed  their  meaning  in  ex- 
plicit terms.  And  where  they  have  not  thought  proper  to  do  so, 
it  is  not  competent  for  us  to  make  the  distinction.  It  would  be 
wresting  language  from  its  obvious  import,  in  favour  of  a  person, 
whom  it  appeared  to  the  legislature,  and  to  us,  has  been  well 
compensated  for  any  services  he  may  have  performed.  The 
duties  of  a  secretary  of  a  company,  which  had  entirelv  suspended 
208 


Jan.  24,  1829.]       OF   PENNSYLVANIA.  188 

[Ehrenzeller  v.  The  Union  Canal  C!ompany.] 

its  operations,  could  not  have  been  very  onerous,  and  the  legis- 
lature may  well  have  been  struck  with  the  injustice,  in  his  case, 
of  squandering  money  appropriated  to  a  public  purpose,  on  a 
person  whose  duties  were  by  no  means  burdensome. 

The  legislature,  in  the  enacting  clause,  drop  the  word  salary, 
used  in  the  preamble,  and  say,  ''  No  compensation  shall  be  al- 
lowed, by  the  company  to  its  officers,  until  the  works  are  actu- 
ally recommenced." 

*They  seem  to  have  anticipated,  that  expedients  would  r^,  qoi 
be  resorted  to,  to  avoid  the  operation  of  the  section,  and  ■-  ^ 
have  used  a  word  which  embraces  ever})  species  of  allowance 
which  may  be  attempted  for  the  services  of  the  officers  of  the 
company,  all  whose  proceedings  upon  the  canal  had  long  since 
ceased,  and  whose  only  funds  were  derived  from  lotteries, 
granted  by  the  legislature.  It  will  not  do  for  the  officers  of  the 
company  to  say,  that  although  we  cannot  receive  compensation, 
by  way  of  salary,  yet  we  are  entitled  to  pay,  for  our  services,  on 
a  quantum  meruit.  If  this  should  be  the  construction  of  the 
act,  it  would  be  in  the  power  of  the  managers  to  defeat  the  mani- 
fest intention  expressed  by  the  legislature,  the  preservation  of 
the  fund  to  enable  the  corporation  to  lessen  tolls  to  be  charged 
for  the  use  of  the  canal.  It  would  only  be  necessary  to  allow 
the  whole  salary,  by  way  of  compensation,  for  the  company,  who 
had  already  abused  their  trust,  would  be  the  judges  of  the  quan- 
tuxm  of  service,  and  its  value.  And  if  this  should  be  permitted, 
in  the  case  of  the  secretary,  the  same  rule  must  be  adopted  as 
regards  the  president  and  managers,  who,  in  the  opinion  of  the 
legislature,  had  evidently  shown  their  willingness  to  appropriate 
to  themselves  large  salaries,  for  which  adequate  services  were 
not  rendered.  It  is  to  be  remembered,  that  the  services  for 
which  he  claims  compensation,  were  performed  by  him  as  secre- 
tary of  the  company,  and  in  no  other  capacity  whatever. 

It  remains  now  to  inquire  how  far  the  act  interferes  with  the 
10th  section  of  the  1st  article  of  the  Constitution  of  the  United 
States,  "  No  State  shall  pass  any  law  impairing  the  obligation 
of  a  contract." 

If  the  moneys,  arising  from  the  lotteries  authorized  by  the  act, 
were  public  moneys,  as  the  legislature  considered,  and  of  which 
no  person  can  entertain  a  reasonable  doubt,  it  would  be  a  matter 
of  regret  if  they  could  not  interpose  to  prevent  the  continuance 
of  a  system  by  which  the  funds  were  diverted  from  their  legiti- 
mate objects.  The  trust,  in  the  opinion  of  those  whose  duty 
it  was  to  take  care  of  the  public  interest,  had  been  violated, 
and  the  legislature,  with  their  accustomed  moderation  and  regard 
to  private  rights,  pass  a  law,  not  to  compel  them  to  refund,  but 
to  prevent,  in  future,  a  practice  calculated  to  retard,  if  not 

VOL.  I.— 14  209 


189  SUPREME  COURT  OF  PA.    [PhUadelphia, 

[Ehrenzeller  v.  The  Union  Canal  Company.] 

wholly  to  prevent,  the  object  of  the  grant,  an  internal  commu- 
nication lx;t\veen  the  waters  of  the  Susquehanna  and  Schuylkill. 
The  Constitution  of  the  Unitetl  States  was  not  intended  to  pro- 
hibit the  legislature  from  controlling  a  fund  created  for  the  pub- 
lic interest,  and  which  had  been  perverted  to  private  purposes  by 
those  to  whose  charge  it  had  been  committed. 

But,  it  is  said  that  a  grant  is  a  contract ;  that  this  is  a  private 
corporation,  and  that  the  creation  of  a  private  corporation  by 
charter,  is  such  a  grant  as  includes  the  obligation  of  a  contract, 
which  no  state  legislature  can  pass  a  law  to  impair ;  and  for  this 
we  have  the  authority  of  the  Supreme  Court  of  the  United 
r*l  QOT  ^*^*^^>  '"  ^'*^  ^•''^  *of  The  Dartmouth  College  v.  AVood- 
^  -■  ward,  4  Wheat.  656.  Although  these,  as  general  posi- 
tions, are  conceded,  yet  it  remains  to  show  their  application. 
The  act  of  assembly  did  not,  it  is  true,  require  the  consent  of 
the  company  to  the  alteration  of  the  charter,  yet  in  point  of 
fact  this  assent  has  been  given  by  the  stockholders ;  and  I 
believe  no  person  will  be  so  hardy  as  to  say,  that  the  legislatuie 
are  prohibited  from  altering  a  charter,  in  its  most  essential 
features,  if  the  alterations  be  agreed  to  either  before  or  after 
the  passage  of  the  act.  The  assent  of  the  stockholders  relates 
back  to  the  date  of  the  law,  for  in  no  other  way  could  the  com- 
pany entitle  themselves  to  the  benefit  of  its  provisions.  When 
the  plaintiff  performed  the  duties  for  which  he  now  claims  com- 
pensation, he  was  aware  of  the  consequence  of  a  subsequent 
assent  on  the  part  of  the  company.  I  cannot,  therefore,  per- 
ceive that  the  plaintiff  has  any  right  to  complain  that  the  presi- 
dent and  managers  think  it  their  duty  to  comply  with  every 
direction  of  the  law  to  whicli  the  company  owes  its  existence. 
It  would  be  out  of  the  power  of  the  stockholders  to  accede  to 
the  alteration  of  the  charter  in  part :  they  must  accept  all  or 
none,  and  the  section  we  are  now  considering,  is  among  the  essen- 
tial provisions  of  tliis  act.  It  violates  no  contract  made  with  the 
plaintiffs  before  the  date  of  the  law ;  for  it  is  worthy  of  remark, 
that  the  secretary  Mas  appointed,  as  is  usual,  not  for  a  term  of 
time,  but  that  he  holds  his  office  during  the  pleasure  of  the  man- 
agers. He  was  free  to  perform  the  services  of  secretary  at  his 
own  will  and  pleasure.  He  was  neither  bound  to  the  company 
in  any  contract  subsisting  at  the  time,  nor  were  they  under  any 
obligations  to  him.  It  is  a  singular  feature  in  this  cause,  that 
the  comj)any  do  not  complain  of  a  violation  of  the  charter :  it 
is  the  secretary  who  insists  that  it  is  made  in  opposition  to  the 
Constitution. 

Judgment  affirmed. 

Cited  by  Counsel,  5  Barr,  148 ;  10  Barr,  445 ;  5  Wriglit,  475. 

Cited  by  the  Court,  2  R.  3G9 ;  I  Wh.  48. 

210 


CASES 


THE  SUPREME  COURT 


PENNSYLVANIA. 


EASTERN  DISTRICT— MARCH  TERM,  1829. 


[Philadelphia,  March  27,  1829.] 

The  Commonwealth  ex  rel.  Taylor  against  Leeds. 

habeas  corpus. 

The  sister  of  a  minor  is  competent,  under  the  act  of  assembly  of  the  29th  of 
September,  1770,  to  assent,  as  his  next  friend,  to  binding  him  apprentice  to 
her  own  husband. 

But  such  a  transaction  will  be  more  strictly  scanned,  than  where  the  bind- 
ing is  to  a  stranger ;  and  if  the  contract  be  tainted  with  fraud  or  collusion,  the 
apprentice  will  be  discliarged. 

He  will  not,  however,  be  discharged  of  course,  where  the  covenants  appear 
to  be  reasonable  and  proper  on  the  face  of  the  indenture,  especially  where  the 
application  is  not  made  till  the  apprentice  has  ceased  to  be  a  burden. 

A  WRIT  of  habeas  corpus  having  issued,  commanding  Gurdon 
I^eeds  to  bring  before  the  court  the  body  of  Henry  Taylor,  to- 
gether with  the  cause  of  his  detention,  he  returned  that  he  held 
the  said  Henry  Taylor  by  virtue  of  a  certain  indenture  of  ap- 
prenticeship, by  which  it  appeared,  that  the  said  Henry  Taylor, 
then  aged  fifteen  years,  had,  on  the  4th  of  July,  1825,  with  the 
consent  of  his  sister,  Margaret  Leeds,  (the  wife  of  the  said  Gur- 
don Leeds,)  acting  as  his  next  friend,  his  parents  being  dead, 
put  himself  apprentice  to  the  said  Gurdon  Leeds,  to  learn  the 
trade  of  a  cabinet  maker,  to  serve  five  years,  six  months,  and 
twenty-four  days ;  during  which  time  the  master  covenanted  to 
find  him  in  boarding,  lodging,  and  washing,  to  give  him  one 
qimrter's  night-schooling,  and,  when  free,  one  new  suit  of 
clothes. 

211 


191  SUPREME  COURT  [Philadelphia, 

[The  Commonwealth,  ex  rel.  Taylor,  r.  Leeds.] 

On  this  return,  it  was  contended  by  P.  A.  Brovme,  for  the 
minor,  that  he  was  entitled  to  l)e  discharged  from  the  service  of 
r*lQ91  ^^'^  master.  *At  common  law,  (he  said,)  the  deed  of  an 
•-  J  infant  is  absolutely  void.  Even  an  indenture  of  appren- 
ticeship entered  into  for  his  instruction  and  benefit,  is  not  valid; 
2  Inst.  379  ;  3  Leon.  637  ;  7  Mod.  15.  But  the  act  of  assembly 
of  the  29th  of  September,  1770,  declares,  that  "all  and  every 
person  and  persons  that  shall  be  bound  by  indenture  to  serve  as 
an  apprentice  in  any  art,  mystery,  occupation,  or  lalK)ur,  with 
the  assent  of  his  or  her  parent,  guardian,  or  next  friend,  or  with 
the  assent  of  the  overseers  of  the  poor,  and  approbation  of  any 
two  justices,  although  such  persons,  or  any  of  them,  were  or 
shall  be  within  the  age  of  twenty-one  years  at  the  time  of  making 
their  several  indentures,  shall  be  bound  to  serve,"  <fec.  The 
question  then  is,  whether  the  sister  of  the  infant,  being  the  wife 
of  the  master,  was  such  a  next  friend  as  the  act  contemplated  ? 
No  objection  can  be  raised  to  the  relationship  of  sister,  w  ho  may, 
in  ordinary  cases,  act  as  next  friend  where  the  parents  are  de- 
ceased :  nor  does  the  objection  arise  from  her  coverture ;  for  a 
married  woman  may  in  some  cases  give  her  assent  to  the  binding 
of  her  child.  The  Commonwealth  v.  Eglee,  6  Serg.  &  Rawle, 
340.  The  objection  is,  that  a  feme  covert  cannot,  as  the  next 
friend  of  her  brother,  assent  to  a  binding  to  her  own  husband. 
It  is  one  of  those  glaring  cases  of  conflicting  interests,  in  which 
the  policy  of  the  law  obeys  the  precept  of  religion,  "  Lead  us 
not  into  temptation."  The  obvious  duty  of  a  next  friend  in 
binding  an  apprentice,  is  to  obtain  the  best  terms  for  the  infant ; 
but  how  could  the  wife  be  expected  to  perform  the  office  with 
fidelity,  under  the  powerful  influence,  not  only  of  duty  to  her 
husband,  but  of  her  own  interest?  The  truth  of  this  remark  is 
strongly  exemplified  by  the  present  indenture,  which  provides 
for  only  one  quarter's  night-schooling  during  a  period  of  many 
years'  service.  Another  duty  of  a  next  friend  is  to  watch  over 
the  conduct  of  the  master,  and  even  of  the  mistress,  upon  whom 
much  of  the  comfort  of  the  apprentice  must  depend,  and  take 
care  that  the  covenants  in  favour  of  the  apprentice  are  duly  per- 
formed. But  it  is  obvious  that  this  duty  cannot  be  performed 
where  the  next  friend  is  herself  his  mistress,  and  the  wife  of  the 
master.  But  this  indenture  is  void,  not  only  on  principle,  but 
authority.  In  the  case  of  The  Commonwealth  v.  Kendig,  1 
Serg.  &  Rawle,  366,  an  attempt  was  made  to  support  an  inden- 
ture upon  the  assent  of  one  of  these  nominal  next  friends,  but  it 
failed.  There  Cyrus  Pearce,  who  held  the  infant  under  an  in- 
denture, acted  as  next  friend  in  binding  her,  by  a  second  inden- 
ture, to  J.  H.  Baker;  and  Chief  Justice  Tilghman,  in  delivering 
the  opinion  of  the  court,  said, "  I  think  it  would  be  of  dangerous 
212 


JlfarcA27,1829.]     OF  PENNSYLVANIA.  192 

[The  Commonwealth,  ex  rel.  Taylor,  v.  Leeds.] 

consequence  to  admit,  that  a  man  who  is  about  to  sell  his 
apprentice,  should  take  the  place  of  next  friend,  because  he  must 
be  supposed  to  be  acting  for  his  own  interest,  which  is  incom- 
patible with  the  idea  of  a  guardian."  In  the  present  case  the 
next  friend  was  acting  for  her  own  interest  in  making  unfavour- 
able terms  for  the  infant,  since  her  interest  is  identified  with 
that  of  her  husband.  It  is  to  be  observed,  that  the  late 
*Chief  Justice  considered  the  acting  as  next  friend  as  p^-.  qq-i 
tantamount  to  an  assumption  of  guardianship ;  and  ac-  '-  -' 
cording  to  Osborne's  Case,  Plowd.  293,  where  a  woman  guardian 
marries,  the  husband  partakes  of  her  rights  as  guardian ;  so  that 
the  assent  here  given  was,  in  point  of  law,  the  assent  of  Gurdon 
Leeds  to  a  binding  to  himself,  which  is  clearly  illegal  and  void. 
2.  The  indenture  in  question  not  only  purports  to  have  been 
made  with  the  assent  of  the  sister  as  next  friend  of  the  infant, 
but  she  has  covenanted  for  the  performance  of  certain  things  on 
the  part  of  the  infant.  It  corresponds,  in  substance,  with  the 
instrument  upon  which  the  case  of  Mead  v.  Billings,  10  Johns. 
Rep.  99,  was  determined,  in  which  the  guardian  was  held  liable 
upon  the  covenants  to  be  performed  by  the  infant.  But  how 
can  a  married  woman  enter  into  a  covenant,  particularly  with 
her  husband  ?  In  The  Commonwealth  v.  Eglee,  there  were  no 
covenants  on  the  part  of  the  feme  covert,  but  merely  an  assent 
given  to  the  binding.  In  the  present  instance,  the  wife  acted 
in  conjunction  with  her  husband,  and  the  presumption  of  law  is, 
she  acted  under  his  coercion.  A  felonious  taking  of  goods  under 
such  circumstances,  would  not  subject  her  to  an  indictment  for 
larceny.  A  transfer  of  her  estate  under  such  circumstances, 
would  be  void. 

F.  W.  Hubbell,  for  the  master,  argued,  1.  That  Mrs.  Leeds 
answered  the  description  of  "  next  friend "  in  the  act  of  assem- 
bly. The  father  and  mother  being  dead,  and  the  infant  having 
no  brother  who  had  attained  the  age  of  twenty-one  years,  the 
duties  of  guardianship  and  maternity  devolved  on  his  eldest 
sister,  who  was  emphatically  his  "  next  friend."  The  act  of 
assembly  contains  no  such  exception  as  coverture. 

2.  According  to  the  strict  technical  rule  of  law  the  disability 
of  coverture  extends  to  acts  in  favour  of  third  persons,  as  well 
as  to  those  in  favour  of  the  husband.  In  the  latter  case,  they 
are  void  upon  the  same  principle  as  in  the  former ;  they  differ 
only  in  degree.  When,  therefore,  it  was  decided  in  The  Com- 
monwealth V.  Eglee,  that  a  feme  covert  may  give  her  assent  as 
a  next  friend  to  the  binding  of  a  minor,  under  our  act  of  assem- 
bly, the  present  case  was  decided  in  principle.  In  the  case  just 
referred  to,  the  nature  of  the  assent  required  is  thus  defined : 

213 


193  SUPREME  COURT  [Philadelphia, 

[The  Commonwealth,  ex  rel.  Taylor,  r.  Leeds.] 

"  It  is  a  personal  confidence  reposed  in  her  by  the  act  of  assem- 
bly :  she  parts  with  no  property,  divests  herself  of  no  interest." 
A  power  of  confidence  reposed  in  a  married  woman,  unaccompa- 
nial  by  any  interest,  may  well  be  exercised  by  her  in  favour  of 
her  husband,  though  the  exercise  of  it  require  discretion :  as  a 
power  of  sale,  &c.  Co.  Litt.  112;  4  Cruise,  181;  Tyser  v. 
Williams,  3  Bibb's  Rep.  368. 

3.  The  cases  of  purchases  by  executors,  trustees,  &c.,  at  their 
own  sales,  have  no  analogy  to  the  present  case,  although  such 
an  identity  of  the  wife  with  the  Imsband  be  admitted,  as  to  ren- 
der the  exercise  of  a  power  in  favour  of  the  husband,  in  effect 
an  exercise  of  it  in  her  own  favour ;  for  at  law  such  a  purchase 
r*l<14l  ^^  ^°  executor  or  trustee,  *when  made  in  the  name  of 
L  J  a  third  person,  is  good.  Equity  interferes  on  the 
ground  of  policy.  A  case  like  the  present  has  never  been  agi- 
tated in  courts  of  equity,  and  technical  rules  of  equity,  which 
preclude  inquiry  into  the  real  equity  of  the  case,  are  not  to  be 
extended  beyond  their  letter.  Equity  avoids  such  a  sale,  by 
putting  the  purchaser  in  statu  quo,  returning  to  him  the  pur- 
chase money  with  interest,  a  tender  of  which  is  essential  to  the 
cestui  que  trust's  claim  of  relief.  Sug.  on  Vend.  433.  But,  on 
the  present  occasion,  no  offer  is  made  of  compensation  to  the 
master,  for  the  instruction  and  sustenance  of  the  apprentice 
during  the  time  he  has  been  with  the  master.  Hitherto,  he  has 
been  only  a  burden  :  his  services,  after  he  shall  have  acquired 
the  trade,  have  been  looked  to  as  a  requital. 

4.  The  present  argument  goes  no  farther  than  that  the  fact 
of  the  next  friend  in  the  indenture  being  the  wife  of  the  master, 
does  not  per  se  vitiate  the  instrument.  If  there  be  actually 
undue  influence,  the  case  is  otherwise.  It  is  even  conceded  that 
the  law  regards  such  a  transaction  with  jealousy.  But  if  this 
indenture  be  subjected  to  the  strictest  scrutiny,  it  must  be  sus- 
tained ;  for  there  is  no  extraneous  proof  of  undue  influence,  and 
on  the  face  of  the  indenture  all  the  usual  covenants  are  to  be 
found.  It  has  been  objected,  that  the  schooling  provided  for  is 
not  sufficient :  to  this  it  may  be  ansAvered,  that  the  boy  was  con- 
siderably beyond  the  usual  age  of  binding,  and  so  advanced  in 
his  education  that  he  did  not  need  more  schooling  than  was 
stipulated  for. 

5.  The  act  of  assembly  does  not  require  the  next  friend  to 
enter  into  any  covenants,  but  merely  to  give  assent ;  conse- 
quently the  covenants  by  the  next  friend,  in  this  indenture, 
were  merely  surplusage,  and  could  not  vitiate  it ;  utile,  per  inu- 
tile, non  vitiatur.  The  covenants  on  the  part  of  the  next  friend 
being  entirely  in  favour  of  the  master,  he  alone  can  object  to 
the  indenture,  if  they  are  void. 

214 


March27,lS2d.]     OF  PEXXSYLYAXIA.  194 

[The  Commonwealtli,  ex  rel.  Taylor,  v.  Leeds.] 

The  opinion  of  the  court  was  delivered  by 

Gibson,  C.  J. — There  must  undoubtedly  be  an  actual,  and  not 
merely  a  formal  next  friend.  His  office,  iiowever,  is  not  to  bind 
the  apprentice,  but  to  allow  the  apprentice  to  bind  himself.  The 
coveuants  of  the  apprentice,  although  executed  under  the  super- 
vision of  those  whom  the  law  has  set  over  him,  are  exclusively 
his  own.  Such  are  the  provisions  of  the  act  of  assembly,  and 
such  was  the  construction  of  it  in  The  Commonwealth  v.  Eglee. 
The  practice  has,  for  the  most  part,  been  for  the  in-ochein  amy 
to  express  his  assent  by  sealing  the  indenture ;  but  no  one  ever 
thought  of  having  recourse  to  him  on  the  conti-act ;  at  least  no 
instance  of  the  sort  has  fallen  under  my  notice.  The  reason  is, 
that  the  legislature  has  not  said  that  he  shall  become  a  party. 
The  assent  is  sometimes  expressed  by  subscribing  as  a  witness ; 
but  neither  in  the  one  case  nor  in  the  other,  has  the  proeJicln 
rtwiy  considered  that  he  was  contracting  any  res})onsibility  for  the 
apprentice.  His  covenant,  if  any  ^existed,  would  be  r:ciQ--| 
joint.  But  that  would  be  inconsistent  with  his  power,  ■-  '  J 
which  is  not  to  subject,  by  any  act  of  his,  the  person  of  the  ap- 
prentice to  the  dominion  of  the  master:  that  can  be  done  only 
by  the  apprentice  himself.  The  procltein  amy  can  join  in  the 
act,  only  so  far  as  the  law  gives  him  authority  ;  and,  by  the 
terms  of  the  act  of  assembly,  his  agency  is  not  to  be  active,  but 
passive.  This  point  was  expressly  ruled  in  The  Commonwealth 
V.  Eglee,  where  the  coverture  of  the  prochein  amy  would  have 
afforded  a  decisive  objection,  if  she  had  been  considered  a  party 
to  the  deed.  That  case  establishes,  also,  that  the  subjection  of 
a  feme  covert  prochein  amy  to  her  husband's  will,  is  not,  in  con- 
templation of  law,  inconsistent  with  the  free  exercise  of  her  will 
in  the  execution  of  her  trust ;  and  this,  in  analogy  to  the  com- 
mon law,  which  permits  a  wife  to  act  in  a  representative  capacity 
and  independent  of  her  husband,  wherever  the  subject-matter  is 
unconnected  with  his  interest  or  marital  rights.  The  pinch  of 
the  case,  here,  is  that  the  binding  was  to  the  husband.  But  in 
equity,  and  even  in  some  instances  at  the  common  law,  wher- 
ever a  feme  covert  has  power  to  act  as  if  she  were  sole,  she  may 
treat  directly  with  the  husband.  As,  however,  the  matter  de- 
pends on  construction,  it  is  urged  that  expediency  requires  that 
the  act  of  assembly  be  so  interpreted  as  to  avoid  the  tendency 
to  abuse  of  power  which  must  necessarily  exist  in  'every  case 
like  the  present.  That  would  be  a  grave  consideration,  were 
abuses  of  the  sort  without  redress.  But  an  effectual  corrective 
is  found  in  the  supervising  power  of  the  judges,  who  are  bound 
to  discharge  wherever  the  contract  is  shown  to  be  tainted  with 
actual  fraud  or  collusion  ;  and,  in  a  case  like  the  present,  the 
transaction  would  be  more  strictly  scanned  than  if  the  binding 

215 


195  SUPREME  COURT  [PhUwldphia, 

[The  Commonwealth,  ex  rel.  Taylor,  v.  Leeds.] 

were  to  a  stranger.  We  will  not,  however,  discharge  of  course, 
where,  as  in  this  case,  the  covenants  appear  reasonable  and 
projxjr  on  the  face  of  the  indenture ;  especially  where  the  appli- 
cation is  not  made  till  the  apprentice  has  ceased  to  be  a  burden. 
It  is  objected,  that  the  quantum  of  schooling  is  unreasonably 
small.  It  appears,  however,  from  the  apprentice's  signature  to 
the  indenture,  that  he  wrote  a  fair  hand ;  and  the  great  object 
of  the  binding  being  to  learn  the  art  and  mystery  of  the  master, 
I  would  hold  an  indenture  valid  without  any  covenant  for  school- 
ing, at  all,  if  it  should  appear  that  the  education  of  the  appren- 
tice had  been  sufficiently  attended  to  before.  It  therefore  ap- 
pears to  a  majority  of  the  court,  that  no  reason  has  yet  been 
shown  why  the  apprentice  should  not  be  remanded. 
Tod,  J.,  dissented. 

Apprentice  remanded. 

Cited  by  Counsel,  8  H.  53. 

Cited  by  the  Court  and  followed,  2  E.  271. 


[*196]  *[Philadelphia,  March  27,  1829.] 

GriflSth  against  Reford. 

IN   EKEOR. 

In  an  action  against  the  indorser  of  a  promissory  note,  the  drawer,  to  whom 
the  defendant  has  executed  a  release,  is  not  incompetent  a.s  a  witness  for  the 
defendant,  on  the  ground  of  interest,  though  he  has  given  to  the  indorser  a 
judgment  and  mortgage,  to  secure  him  against  the  indorsement. 

But  he  is  incompetent,  (on  the  ground  that  a  witness  cannot  impeach  a 
writing  he  has  given),  to  prove  that  the  consideration  of  the  note  was  usuri- 
ous ;  that  the  indorsee  was  in  fact  the  lender,  and  that  the  security  was  put 
into  a  negotiable  form,  merely  for  the  sake  of  convenience. 

On  a  writ  of  error  to  the  District  Court  for  the  city  and 
county  of  Philadelphia,  it  appeared  from  the  bills  of  exceptions 
returned  with  the  record,  that  Caleb  Griffith,  the  plaintiiF  in 
error,  brought  this  action  to  recover  the  amount  of  four  promis- 
sory notes,  drawn  by  Thomas  L.  Plowman  in  favour  of  Elizabeth 
Reford,  the  defendant,  by  whom  they  were  indorsed,  and  also 
to  recover  the  amount  of  a  bill  of  exchange,  drawn  by  L.  Man- 
sell  on  J.  J.  Marshall  of  Frankford,  Kentucky,  in  favour  of 
Thomas  L.  PJowman,  by  whom,  as  well  as  by  the  defendant,  it 
was  indorsed. 

One  of  these  notes  had  its  origin  in  a  transaction  between  the 

plaintiff  and  the  said  T.  L.  Plowman  in  the  year  1803,  and 

another  of  them  originated  in  a  transaction  between  the  same 

parties  in  the  year  1809.     Notes  were  then  given,  which  were 

216 


March  27, 1S29,]    OF   PENNSYLVANIA.  196 

[Griffith  V.  Reford.] 

renewed  from  time  to  time  until  the  year  1819,  when  the  notes 
upon  which  the  present  suit  is  founded  were  given. 

On  the  trial  of  the  cause  in  the  District  Court,  after  the  notes 
and  bill  of  exchange  above  mentioned  had  been  given  in  evi- 
dence by  the  plaintiif,  the  defendant  oifered  T.  L.  Plowman,  the 
drawer  of  the  said  notes  and  the  indorser  of  the  bill  of  exchange, 
as  a  witness  to  prove  that  the  consideration  of  the  notes  was 
usurious,  the  defendant  having,  at  the  bar,  given  him  a  release 
from  all  liability  to  her.  The  counsel  for  the  plaintiif  objected 
to  his  competency,  but  the  court  overruled  the  objection,  and 
sealed  a  bill  of  exceptions. 

After  having  been  sworn,  the  witness  stated  that  he  had  given 
a  judgment  and  mortgage  to  the  defendant,  to  secure  her  from 
loss,  in  consequence  of  the  notes  given  in  evidence.  The  judg- 
ment was  entered  in  the  District  Court  for  the  city  and  county 
of  Philadelphia  on  the  5th  of  December,  1818.  The  record  of 
this  judgment  was  then  produced  by  the  counsel  for  the  plain- 
tiif, who  objected  to  the  further  examination  of  the  witness ; 
but  the  court  again  overruled  the  objection,  and  a  second  bill  of 
exceptions  was  tendered  and  sealed. 

The  counsel  for  the  plaintiff  then  objected  to  the  examination 
of  the  witness,  as  to  the  consideration  of  any  other  notes  than 
those  which  formed  the  foundation  of  the  suit ;  but  the  court 
overruled  the  objection,  and  permitted  the  witness  to  give  evi- 
dence of  any  *usurious  consideration,  from  the  first  r*iQ-i 
note  which  passed  between  the  parties,  up  to  the  notes  •-  ^ 
on  which  the  suit  was  brought,  through  their  successive  renew- 
als. The  opinion  of  the  court,  in  permitting  this  evidence  to  be 
given,  was  the  ground  of  a  third  bill  of  exceptions. 

In  these  several  opinions  of  the  court  below,  error  was 
assigned  in  this  court,  where 

A.  Randall  and  J.  Randall,  for  the  plaintifl['  in  error,  cited 
Chitty  on  Bills,  443  ;  Sterling  v.  The  Marietta  and  Susquehanna 
Trading  Company,  11  Serg.  &  Rawle,  179;  Conrad  v.  Keyser, 
5  Serg.  &  Rawle,  370 ;  Haves  v.  Grier,  4  Binn.  83  ;  Walton  v. 
Shelley,  1  T.  Rep.  300 ;  1  New  Hamp.  Rep.  60 ;  Kirk,  166 ;  3  Mass. 
Rep.  27 ;  4  Mass.  Rep.  156  ;  6  Mass.  Rep.  499  ;  7  Mass.  Rep.  199 ; 
10  Mass.  Rep.  502;  17  Mass.  Rep.  94;  3  Johns.  Cas.  185;  2 
Johns.  Rep.  165;  15  Johns.  Rep.  270;  17  Johns.  Rep.  176; 
Stille  ^.  Lynch,  2  Dall.  194;  Shaw  v.  Wallis,  2  Yeates,  17; 
Baring  v.  Shippen,  2  Binn.  165  ;  Baird  v.  Cochran,  4  Serg.  & 
Rawle,  398  ;  9  Serg.  &  Rawle,  229  ;  2  Havw.  298  ;  2  Hawks. 
238  ;  3  Dess.  Rep.  223 ;  Cropper  v.  Nelson ,"3  Wash.  C.  C.  Rep. 
125;  4  Esp.  Rep.  11  ;  10  Mass.  Rep.  121;  10  Wheat.  367; 
Lewis  V.  Morgan,  11  Serg.  &  Rawle,  234. 

217 


197  SUPREME  COURT  \PhUaddphm, 

[Griffith  V.  Reford.] 

KUtera  and  Chauncey,  for  tlie  defendant  in  error,  cited,  7  T. 
Rep.  62 ;  Starkie  on  Evid.  Pt.  4,  298  ;  Baird  v.  Cotrhran,  4 
Serg.  &  Rawle,  398;  Baring  v.  Shippen,  2  Binn.  154,  165; 
Boyce  v.  Moore,  2  Dall.  196;  20  Johns.  Rep.  285;  16  Johns. 
7  ;  15  Johns.  270;  1  Cra.  194;  Blagg  v.  Tlie  Phoenix  Ins.  Co., 
3  Wash.  C.  C.  Rep.  5. 

The  opinion  of  the  court  was  delivered  by 

Gibson,  C.  J. — The  objection  to  the  witness,  on  the  ground  of 
interest,  is  not  sustained  ;  but,  it  seems  to  me,  he  was  incompe- 
tent under  the  rule  in  Walton  v.  Shelley,  to  prove  that  the  con- 
sideration was  usurious.  That  rule  is  undoubtedly  restricted  to 
paper  actually  negotiated ;  and  it  consequently  has  no  place 
between  the  original  parties.  But  how  did  the  case  stand  when 
the  witness  was  called  ?  Apparently  between  an  indorser  and 
indorsee;  and  the  question  therefore  is,  not  whether  the  wit- 
ness was  competent  to  prove  the  consideration  usurious,  in  a 
case  admitted  to  be  between  the  original  parties,  but  whether 
he  could,  by  his  own  evidence,  remove  an  apparently  well 
founded  objection  to  his  ow^n  competency ;  and  I  take  it  he 
could  not.  If  he  might  make  way  for  his  testimony  in  chief  by 
taking  his  case  out  of  a  rule  which  pnma  facie  furnishes  a  valid 
objection  to  it,  he  might  as  well  testify  in  chief  in  the  first  in- 
stance ;  for  if  he  were  competent  for  the  one  purpose,  he  would 
necessarily  be  so  for  the  other.  But  a  witness  cannot  open  his 
lips  for  any  purpose  whatever,  while  an  original  objection  to  his 
competency  remains.  It  would  seem,  therefore,  that  the  court 
erred  in  admitting  the  witness  exclusively  on  the  credit  of  his 
own  evidence,  *that  the  indorsee  was  iri  fact  the  lender. 


[*198] 


and  that  the  security  was  put  into  a  negotiable  form 


merely  for  the  sake  of  convenience. 

Huston,  J. — The  plaintiff  in  error,  who  was  plaintiff  below, 
sued  Mrs.  Reford,  as  indorser  on  four  several  promissory  notes, 
all  dated  in  1819,  but  on  different  days,  and  payable  at  differ- 
ent times.  These  notes  were  all  drawn  by  Thomas  L.  Plow- 
man, payable  to  Mrs.  Reford,  and  by  her  indorsed.  There  was 
also,  by  consent,  a  bill  of  exchange  included  in  the  verdict, 
about  which  there  was  no  dispute.  The  pleas  were  the  general 
issue,  and  a  special  plea  of  usury,  and  issue.  At  the  trial  of 
the  cause,  it  was  offered  to  prove,  that  more  than  twenty  years 
ago  the  dealings  between  Plowman  and  the  plaintiff  began  in  a 
loan  of  money  by  Griffith  to  Plowman  at  usurious  interest,  which 
money  was  secured  by  notes  drawn  by  Plowman  and  indorsed 
by  the  defendant ;  that  the  defendant  never  had  any  interest 
in  the  notes  or  communication  with  the  plaintiff,  but  indorsed 
218 


J/arcA27,1829.]     OF  PEXXSYLVANIA  198 

[Griffith  V.  Keford  ] 

at  the  request  and  for  the  accoramodation  of  Plowman,  her 
brother.  The  loan  was  originally  about  seven  hundred  dollars, 
and  by  renewing  the  notes  and  including  usurious  interest,  it 
amounted  to  about  six  thousand  dollars  ;  that  is,  to  about  four 
thousand  dollars  more  than  the  debt  and  legal  interest.  The 
notes  in  question  were  a  renewal  of  former  notes,  and  the  last 
were  for  principal  and  legal  interest  on  those  immediately  pre- 
ceding them.  Plowman  had,  in  1818,  given  his  sister,  the 
defendant,  a  judgment  and  mortgage  to  secure  her  froni  all 
responsibility  on  account  of  her  said  indorsements ;  and  she 
had  executed  a  full  release  of  all  claims  and  demands  whatso- 
ever, to  that  date ;  and  particularly  of  all  claim  or  demand  on 
account  of  this  suit,  &c. 

The  plaintiff  objected  to  him  as  a  witness,  and  the  court  ad- 
mitted him  to  prove  the  whole  case.  Though  divided  into  three 
bills  of  exceptions  in  the  court  below,  I  shall  consider  the  whole 
together. 

The  case  of  Walton  v.  Shelley,  was,  for  the  thousandth  time, 
brought  up  and  relied  on.  It  is  strange  that  a  case  standing, 
alone,  supported  by  no  prior  and  no  subsequent  decision,  should 
still,  once  each  term,  give  us  employment  for  a  day,  more  or  less. 
Lord  Mansfield  brought  the  principle  from  the  civil  law,  and 
engrafted  it  on  the  common  law,  but  it  never  grew.  AWiile 
the  judges  who  decided  Walton  v.  Shelley  continued  on  the 
bench,  it  had  a  kind  of  sickly  existence.  With  them  the  doc- 
trine quod  nemo  allegans  suam  turpdudinem  est  audiendus  be- 
came extinct,  and  in  the  English  and  in  our  system,  is,  I  think, 
in  no  single  instance  true.  That  a  person  who  has  made  or 
indorsed  a  note,  and  put  it  in  circulation,  until  it  has  got  into 
the  hands  of  an  innocent  holder,  shall  not  prove  that  it  was 
void  before  he  indorsed  or  negotiated  it,  depends,  not  on  that 
maxim,  but  on  a  distinct  principle.  See  6  Serg.  &  Rawle,  115, 
to  be  cited  more  fully  hereafter. 

Notes  and  bills,  in  modern  times,  enter  so  largely  into  the  trans- 
actions of  men,  that  it  has  been  considered  necessary  to  adopt  par- 
ticular *rules  as  to  them, — to  give  them  a  sanctity  not  r*i  qq-i 
attending,  in  all  cases,  the  transfer  of  other  personal  ■-  ^ 
property.  Either  the  ideas  of  lawyers,  and  judges  too,  were 
vague  and  confused,  or  the  reporters  did  not  give  us  really  what 
was  said.  The  interest  of  commerce  never  required  that  coun- 
terfeit money  should  pass  current,  or  that  forgery  should  be 
protected  or  encouraged.  It  did  require  that  he  who  had  passed 
to  an  innocent  person,  for  valuable  consideration,  counterfeit 
money,  or  a  forged  note  instead  of  money,  should  be  held  liable 
for  so  much  good  money ;  and  he  who  had  passed  such  money 
or  note,  and  was  proved  to  have  done  so  was  liable ;  and  his 

219 


199  SUPREME  COURT  [PhUaddphm, 

[G;-iffith  V.  Refdrd.] 

indorsing  tlie  note  being  full  evidence  that  he  passed  it,  he  was 
said  to  be  liable  on  his  indorsement,  which,  in  truth,  was  only 
the  evidence  of  his  liability,  which  liability  depended  on  general 
principles  of  justice ;  the  same  which  made  him  liable  in  the 
sale  of  any  other  article  which  was  not  his  own,  or  which  was 
not  what  he  represented  it  to  be.  Hence,  very  soon  it  was  dis- 
covered to  be  absolutely  necessary  to  admit  as  witnesses,  men 
who  had  once  owned  a  note,  and  whose  names  were  on  it,  to 
prove  facts  which  rendered  it  worthless,  but  which  had  taken 
place  after  such  witnesses  had  parted  with  it. 

The  laws  forbid  gaming,  usury,  &c. : — the  interest  of  com- 
merce never  required  the  laws  of  the  country  to  be  set  at  naught, 
or  that  criminals  should  escape  punishment ;  but  if  a  gaming 
debt  or  a  usurious  contract  becomes  valid  when  put  into  the 
shape  of  a  negotiable  note,  the  law  is  repealed  by  the  court ; 
and  the  judges,  except  in  Massachusetts,  have  not  said,  that  a 
security  declared  void  in  every  form,  shall  be  good  in  one  par- 
ticular form,  and  that  the  shortest  and  most  easily  adopted. 

All  paper  in  the  form  of  negotiable  notes  is  not  at  all  times 
considered  negotiable ;  for  example,  a  note  after  it  is  due ;  and 
in  every  country,  I  believe,  the  consideration  of  a  note  nego- 
tiated after  it  is  due,  may  be  inquired  into,  and  those  who  in- 
dorsed before  it  was  due,  are  witnesses  in  any  suit  on  it,  if  dis- 
interested. See  Cromwell  v.  Arrott,  1  Serg.  &  Rawle,  180,  and 
cases  there  cited. 

Fairness  and  honesty  are  as  essential  to  mercantile  prosperity, 
and  as  important  in  dealings  with  mercantile  paper,  as  in  any 
other  department  of  life  :  hence  it  was  long  ago,  and  still  is  most 
clearly  held,  that  the  person  who  claims  to  recover  on  mercan- 
tile paper,  must,  if  there  is  any  objection  to  it,  show  that  he  is 
a  bona  fide  holder.  If  he  was  concerned  in  giving  it  a  taint,  if 
there  is  anything  unfair  or  illegal  about  it,  and  he  was  one  of 
those  who  made  it  so,  he  ought  not  and  will  not  derive  any  ad- 
vantage from  its  being  in  a  negotiable  form. 

There  was  a  time  when  counsel  in  argument,  and  perhaps 
judges,  talked  about  a  drawer  or  indorser  being  a  witness  for 
one  purpose,  and  not  for  every  purpose.  This  seems  to  be  over. 
A  witness  in  chief,  must  be  sworn,  among  other  things,  to  tell 
the  whole  truth ;  and,  if  so  sworn,  must  do  so  or  be  perjured, 
r*20()1  ^^^*^  ^^^  exception  of  *not  telling  what  will  subject  him- 
•-  J  self  to  criminal  prosecution.  And,  if  the  matter  offered 
in  evidence  can  be  proved  by  a  witness,  it  can  be  proved  by  any 
witness  who  is  not  infamous  and  not  interested. 

For  the  law  on  this  subject  of  the  drawer  or  indorser  of  a  bill, 
and  maker  or  indorser  of  a  note,  being  a  witness  in  a  suit  on 
that  bill  or  note,  I  shall  refer  to  Chitty  on  Bills,  412,  413,  and 
220 


March  27,  1829.]     OF  PENNSYLVANIA.  200 

[Griffith  V.  Keford.] 

the  following  pages  :  and  the  result  is,  that  in  every  case  where 
the  party  offered  is  disinterested  in  the  event  of  the  cause  try- 
ing, or  equally  liable  to  both  parties,  he  is  a  witness ;  and  if 
liable  to  costs  to  one  party,  a  release  by  that  party  renders  him 
competent ;  and  that  the  drawer  or  iudorser,  in  a  suit  against 
the  acceptor,  may  be  a  witness  for  the  plaintiff  to  prove  the  ac- 
ceptance, or  for  tlie  defendant  to  prove  it  void,  as  having  been 
discounted  on  a  usurious  consideration ;  or  that  it  had  been  paid ; 
or  that  it  was  not  recoverable  for  any  of  the  causes  which  would 
avoid  it,  if  proved  by  a  person  through  whose  hands  the  note 
never  passed.  An  act  of  parliament  has  been  passed,  enabling 
him  who  holds  a  note  given  on  a  usurious  consideration,  without 
notice  and  for  valuable  consideration,  to  recover  on  it. 

In  New  York  they  adopted  the  English  rule  in  broad  terms 
in  Winton  v.  Saidler,  3  Johns.  Cas.  185.  The  good  sense  and 
profound  learning  of  their  judges  soon  discovered  that  excep- 
tions were  necessary ;  and  it  is  now  fully  settled  there,  that  the 
maker  or  iudorser  of  a  note  may  prove  any  facts  which  go  to 
show  that  it  ought  not  to  be  recovered  by  a  holder  who  had 
notice  of  those  facts  when  he  took  the  note.  See  10  Johns.  231 ; 
WoodhuU  V.  Holmes,  15  Johns.  270.  In  17  Johns.  176,  the 
above  cases  are  reviewed  and  sanctioned  ;  and  it  is  said,  if  a  man 
puts  his  own  name  on  a  note  which  is  void,  and  gives  it  cur- 
rency, he  shall  not,  as  against  a  bona  fide  holder,  be  permitted 
to  say  it  was  tainted  when  it  passed  from  his  hands ;  but  if  it 
receives  its  taint  when  it  is  negotiated  to  the  party  plaintiff,  by 
the  facts  then  h.appeuing,  an  indorser  whose  name  is  on  it,  may 
prove  those  facts.  The  witness  was  the  second  indorser,  and 
the  suit  was  by  the  third  indorser  against  the  first. 

The  case  in  20  Johns.  285,  sanctions  all  these  cases,  and  de- 
cides, that  in  a  suit  by  the  usurious  holder  against  the  maker,  the 
payee  and  indorser  is  a  witness  to  prove  the  whole  case ;  and, 
further,  if  a  note  be  made  for  the  purpose  of  raising  money,  and 
it  is  discounted  at  a  premium  higher  than  the  legal  rate  of  in- 
terest, and  none  of  the  parties  whose  names  are  on  it  could,  as 
between  themselves,  maintain  a  suit  on  it  when  it  became  ma- 
ture, provided  it  had  not  been  discounted,  then  such  discounting 
would  be  usury.  And  this,  and  the  case  in  17  Johns.  176,  decide, 
that  if  a  note,  void  for  usury,  is  indorsed  bona  fide  for  good  con- 
sideration to  an  innocent  person,  and  the  maker  of  the  note  take 
it  up,  and  give  a  new  note,  this  latter  is  good ;  but  if  the  new 
note  is  given  to  the  person  who  was  himself  the  usurer,  to  take 
up  a  former  usurious  note  or  notes,  without  any  new  considera- 
tion, this  last  note  is  equally  infected  as  the  first.  *A  r^^A-i-i 
mere  change  of  security  for  the  same  usurious  loan,  to  '-  ^ 
the  party  who  committed  the  usury,  or  to  one  who  had  notice  of 

221 


201  SUPREME   COURT  [Ph'dadelphia, 

[Griffith  V.  Reford.] 

it,  can  never  purge  tlie  original  transaction  or  give  a  right  to 
recover.  I  have  said  the  decisions  in  Massachusetts  are  differ- 
ent. 4  Mass.  Rep.  157,  decides  that  neither  the  maker  nor 
indorser  is  a  witness  to  prove  the  note  void  against  the  indorsee, 
who  was  himself  the  usurer,  and  plaintiff.  The  distinction  be- 
tween an  innocent  holder  and  a  culpable  one,  though  it  would 
seem  a  very  obvious  one,  did  not  strike  the  court.  The  whole 
reasoning  is  on  the  ground,  that  the  plaintiff  is  an  innocent  and 
bona  fide  holder.  "A  note,"  says  the  judge,  "is  offered  to  the 
merchant  or  farmer  in  payment  for  goods  or  produce :  all  he 
has  to  do  is  to  look  at  the  names  on  the  note."  And  again :  * 
"  It  would  encourage  fraud,  by  enabling  the  parties  to  enjoy  the 
ffuits  of  it,  and  throw  the  mischievous  consequences  of  it  on  an 
innocent  indorsee."  And  this  decision  is  persisted  in,  as  to 
usurious  notes,  up  to  10  Mass.  Rep.  502 ;  and  is  the  more 
remarkable,  because  in  6  Mass.  Rep.  430,  an  indorser  is  held  a 
witness  to  prove  a  fact  occurring  when  the  plaintiff  received  the 
bill  from  the  witness,  showing  that  he  ought  not  to  recover.  And 
again,  in  Storer  v.  Logan,  9  Mass.  Rep.  55,  in  an  action  by  the 
indorsee  against  the  drawer,  the  indorser  was  admitted  to 
prove,  that  at  the  time  of  indorsing,  he  communicated  certain 
conditions  and  restrictions  as  to  his  right  to  draw  the  bill.  Here 
the  difference  between  the  innocent  and  bona  fide  holder,  and  one 
with  notice,  seems  distinctly  recognized.  In  4  Mass.  Rep.  370, 
the  doctrine  thai  an  indorsee  who  has  a  note  to  which  he  knew 
of  objections  when  he  took  it,  or  even  if  he  took  it  under  cir- 
cumstances which  ought  to  excite  suspicion,  holds  it  subject  to 
all  exceptions  which  could  be  made  to  it  in  the  hands  of  the 
payee,  seems  to  be  fully  and  repeatedly  recognized. 

I  now  come  to  cases  in  our  own  courts.  In  2  Dall.  92,  it  is 
said,  "A  man  may,  bona  fide,  purchase  any  security  for  the  pay- 
ment of  money,  at  the  lowest  rate  he  can,  without  incurring  the 
penalties  of  usury." 

The  rule  in  New  York  is,  it  would  seem,  or  rather,  was  fully 
established,  though  expressed  in  other  words.  In  Baird  v.  Coch- 
ran, 4  Serg.  &  Rawle,  398,  it  was  decided,  that  to  exclude  par- 
ties whose  names  were  on  the  bill^  but  who  were  not  sued,  and 
not  interested,  the  note  must  not  only  be  negotiable,  but  must 
have  been  actually  negotiated  in  the  usual  course  of  business : 
in  other  words,  must  be  in  the  hands  of  the  plaintiff  bona  fide 
without  notice.  This  had  been  before  decided  ifi  Cromwell  v. 
Arrott,  1  Serg.  &  Rawle,  185,  on  great  consideration,  and  said 
in  Baring  v.  Shippen.  And  the  very  point  came  up  the  next 
year.  In  Hepburn  v.  Cassel,  6  Serg.  &  Rawle,  115,  Gibson, 
Justice,  (now  Chief  Justice,)  goes  into  a  pretty  full  considera- 
tion of  the  question,  and  says,  "  When,  therefore,  the  contest  is 
222 


ifarcA  27, 1829.]    OF  PEXNSYLYANIA.  201 

[Griffith  V.  Eeford.] 

between  the  original  parties,  or  between  the  drawer  and  a  person 
w4io  has  not  become  the  holder  by  the  usual  *mercantile  r*9A9-| 
indorsement,  there  is  no  ground  for  the  application  of  L  J 
the  rule."  And,  again  :  "  The  true  ground  of  the  rule  is  policy, 
which  interposes  its  protection  only  in  favour  of  third  persons, 
who,  in  the  common  course  of  business,  have  become  the  hold- 
ers of  paper  strictly  negotiable."* 

The  case  of  The  Bank  of  Montgomery  v.  Walker,  9  Serg.  & 
Rawle,  229,  although  a  wide  range  was  taken,  yet  recognizes 
one  ground  sufficient  for  ^the  plaintiff, — that  the  fact  relied  on 
by  the  defendant  was  not  known  to  the  bank  when  it  gave  full 
consideration  for  the  note,  and,  the  case  concludes  by  stating, 
without  notice  had  paid  the  full  value.  It  was  decided  on  the 
principle  that  the  instrument  was  negotiable,  and  negotiated  to 
the  bank  ignorant  of  the  defence  set  u.p.  In  page  336,  Dun- 
can Justice,  says,  "  The  rule  that  a  man,  whose  name  is  on  a 
note  or  bill,  shall  not  be  a  witness,  has  been  restrained  here  to 
negotiable  instruments,  properly  so  called,  and  negotiated- in  the 
ordinary  course  of  business,  before  due."  And  the  only  grounds 
on  which  this  part  of  the  case  is  put,  are,  that  they  were  liable 
for  costs  to  the  defendant,  if  a  recovery  was  had  against  him, 
and  that  they  did  not  tell  the  bank,  when  they  offered  the  note 
for  discount,  what  they  were  offered  to  prove  in  court. 

In  England,  New  York,  Massachusetts,  and  most  other  coun- 
tries, notes  given  for  gaming  or  usurious  considerations  are 
declared  void  by  statute.  In  this  state  the  security  is  not 
declared  void,  but  it  is  expressly  enacted,  that  no  person  shall 
take,  for  the  loan  or  use  of  money,  more  than  six  per  cent,  per 
year,  and  a  penalty  is  inflicted.  It  is  so  well  settled  in  this 
court,  as  well  as  others,  that  no  action  can  be  suj^ported  on  a 
contract  made  in  express  violation  of  an  act  of  assembly,  that  I 
shall  not  dwell  on  that. 

Among  the  rules  of  most  general  use  and  effect,  is  one,  that 
no  court  shall  give  such  construction  to  a  statute  as  to  render  it 
nugatory ;  and  a  corollary  as  strong  is,  that  no  court  can  give 
such  application  to  the  rules  of  practice  or  of  evidence,  as  to 
destroy  an  express  legislative  enactment. 

The  discussion  of  the  policy  of  laws  against  usury,  I  shall  not 
meddle  with.  They  exist  in  all  countries  where  there  is  a  gov- 
ernment ;  and,  if  no  where  else,  it  is  enough  for  me  that  ii  is 
prohibited  here.  If  it  were  not,  this  case,  presented  to  any 
legislative  body,  would  produce  a  law. 

My  opinion  ig,  that  if  the  transaction  was  really  a  loan  on  the 
one  side,  and  a  borrowing  on  the  oth^r,  more  than  legal  inter- 
est cannot  be  recovered ;  and  it  is  immaterial  whether  the  secu- 
rity is  bill,  note,  bond,  judgment,  or  mortgage;  and  that  auv 

223 


202  SUPREME  COURT  [Philadelphm, 

[Griffith  V.  Reford.] 

person  not  infamous,  not  interested  in  the  event  of  the  cause  try- 
ing, is  a  witness  to  prove  any  and  every  part  of  the  ease ;  that 
the  rule  of  supposed  mercantile  importance,  does  not  in  this,  or 
any  other  case,  apply  in  favour  of  a  plaintiif  who  is  himself  the 
wrong-doer;  and,  if  it  otherwise  would  apply,  I  hold  that  an  act- 
of  assembly  will  control  and  change  any  rule  of  evidence  or  prac- 
r*'>0'^1  tice ;  and  the  application  *of  this  rule,  in  such  c^ses  as 
L  *"  -I  this,  annuls  the  act  and  makes  it  inoperative;  and  I 
believe  all  previous  decisions  in  this  state  warranted  the  District 
Court  in  admitting  the  evidence,  and,  in  their  direction  to  the 
jury  on  that  evidence. 
Tod,  J.,  concurred  with  Huston,  J. 

Judgment  reversed,  and  a  venire  facias  de  novo  awarded. 

Cited  by  Counsel,  2  Wh.  52 ;  10  W.  113 ;  5  W.  &  S.  28 ;  7  W.  &  S.  145 :  3 
Barr,  299,  384 ;  9  Barr,  507^-  1  H.  48  ;  3  H.  62 ;  9  H.  446 ;  2  C.  512 ;  6  C.  146 ; 
1  Wright,  497;  6  Wright,  478;  2  G.  362;  2  W.  N.  C.  485. 

Cited  by  the  Court,  1  Miles,  38 ;  4  Wh.  337,  367 ;  5  Wh.  575  ;  2  W.  268 ; 
6  W.  499;  8  W.  309;  4  W.  &  S.  289;  7  H.  339;  5  Barr,  52;  2  C.  261,  469; 
1  Wright,  283. 

Affirmed  in  5  Wh.  341,  and  re-affirmed,  3  W.  &  S.  558.  In  8  H.  472,  it  is 
said  to  be  no  longer  an  open  question. 


[Philadelphia,  March  27, 1829.] 

Cope  and  Others,  trading  under  the  firm  of  Thomas  P. 
Cope  &  Sons,  against  Cordova. 

IN   ERROR. 

The  master  of  a  vessel  arriving  at  the  port  of  Philadelphia  from  a  foreign 
port,  is  not  bound  by  the  bill  of  lading,  to  deliver  the  goods  personally  to  the 
consignee.  The  liability  of  the  ship  owner  ceases  when  the  goods  are  landed 
at  the  usual  wharf. 

This  was  a  writ  of  error  to  the  Court  of  Common  Pleas  of 
Philaddphia  county,  where  the  defendant  in  error,  who  was 
plaintiif  below,  had  obtained  judgment  for  fifty-nine  dollars  and 
forty-four  cents  upon  the  following  case  stated  : — 

"  The  ship  Lancaster,  from  Liverpool,  owned  by  the  defend- 
ants, was  entered  at  the  custom-house  at  Philadelphia,  on  the 
17th  of  June,  1824,  and  commenced  unloading  on  the  21st  of 
the  same  month.  The  plaintiff  was  consignee  of  ten  crates  of 
Liverpool  ware,  part  of  the  cargo  of  said  vessel.  All  these 
crates  were  received  by* the  plaintiff  except  one,  which  Avas 
known  and  designated  as  No.  28. — For  the  value  of  this  crate, 
which  the  plaintiff  never  received,  this  action  is  brought. 
224 


l/arc/i27,l829.]      OF  PENNSYLVANIA.  203 

[Cppe  et  al.,  trading  under  the  firm  of  Thomas  P.  Cope  &  Sons,  v.  Cordova.] 

"  The  ten  crates  consigned  as  above  to  the  plaintiff,  were  entered 
by  him  at  the  custom-house.  As  soon  as  the  vessel  ^vas  ready 
to  unload,  the  plaintitF  sent  a  porter  to  receive  them  with  a 
permit,  and  a  list  of  the  articles  as  specified  in  his  invoice,  and 
an  authority  to  receive  them  and  carry  them  to  his  store.  The 
porter  delivered  the  permit  to  tlie  inspector  on  board  the  sliij) 
and  asked  for  the  plaintiff's  crates.  On  the  22d  June,  one  or 
more  crates  mentioned  in  his  list  wave  received  by  the  plaintili, 
and  one  or  more  on  the  two  following  days.  The  porter  did  not 
attend  on  the  wharf  during  the  whole  of  those  days,  but  called 
repeatedly  each  day  and  inquired  of  the  inspector  for  these 
crates,  and  took  them  away  as  received.  No.  28  was  landed  on 
the  wharf  on  the  23d  June,  but  was  not  received  by  the  plain- 
tiff or  his  porter,  and  it  is  unknown  to  the  parties  what  became 
of  it. 

"In  unloading  a  vessel,  it  is  usual  as  soon  as  articles  of  bulk, 
such  as  crates,  are  brought  upon  deck,  to  pass  them  over  the 
side  *of  the  vessel  and  land  them  on  the  wharf.  It  is  r*9A  (-i 
also  the  practice  of  the  owners  to  station  a  clerk  upon  L  ""  -I 
the  wharf,  who  takes  a  memorandum  of  the  goods  which  leave 
the  wharf  and  the  day  on  which  they  are  taken  away,  for  the 
information  of  his  employers,  in  a  book  called  the  cargo  book. 
The  cargo  of  the  Lancaster  was,  on  this  occasion,  unloaded  in 
the  usual  manner;  but  the  cargo  book  contai.ns  no  entry  in  re- 
gard to  No.  28,  except  a  memorandum  from  the  bill  of  lading 
made  in  the  margin,  as  is  usual  before  beginning  to  unload,  but 
which  has  no  reference  to  the  actual  receipt  of  the  same  by  the 
consignee,  or  on  his  behalf. 

"  It  is  agreed  that  the  value  of  the  crate  No.  28,  be  assessed  at 
fifty-one  dollars  and  fifty-three  cents,  which  includes  its  propor- 
tion of  custom-house  duties  and  other  expenses,  and  that  the 
cargo  book,  plaintiff's  invoice,  and  bill  of  lading  shall  be  in 
evidence. 

"Upon  these  facts,  if  the  court  he  of  opinion  that  the  duty  of 
the  defendants  required  them  to  see  that  the  said  crate,  No.  28, 
after  being  landed  as  aforesaid,  was  received  by  the  plaintiff, 
their  judgment  is  to  be  entered  for  the  plaintiff  in  the  sum  of 
fifty-one  dollars  and  fifty-three  cents ;  but,  if  the  court  be  of 
opinion  that  the  duty  of  the  defendants  did  not  so  require,  their 
judgment  is  to  be  entered  for  the  defendants,  and  the  costs  are 
to  abide  the  event  of  the  suit.  It  is  further  agreed  that  the 
case  thus  stated  be  considered  as  a  special  verdict,  and  subject 
to  a  writ  of  error,  and  that  all  questions  of  law  be  decided  under 
the  issue  on  the  present  Narr ; — whether  the  evidence  shows  a 
case  of  negligence  or  conversion." 

VOL.  1.— 15  .  225 


204  SUPREME  COUliT  [Phikiddphla, 

[Cope  et  al.,  trading  under  the  firm  of  Thomas  P.  Cope  &  Sons,  v.  Cordova.] 

The  cause  was  argued  by  CmlwaUader  for  the  plaintiffs  in 
error,  and  by  H.  Mcllvaine  for  the  defendant  in  error. 

For  the  plaintiffs  in  error,  it  was  said  that  the  decision  of  the 
court  below  could  not  be  supportetl  without  requiring  of  the 
owners  of  vessels,  whose  cargoes  are  subject  to  the  revenue  laws 
of  the  United  States,  the  performance  of  duties  such  as  these 
laws  rendered  it  impossible  to  perform.  This  would  appear  by 
considering  the  effect  of  the  act  of  congress  of  the  2d  March, 
1799,  sect.  53,  54,  55,  and  56.     (1  Story's  L.  U.  S.  619,  et  sefj.) 

The  special  verdict  expressly  states  that  the  missing  crate  of 
hardware  was  landed  on  the  wharf.  It  also  states  that  the  cargo 
of  this  vessel  was  unloaded  according  to  the  usual  manner,  and 
it  likewise  describes  the  usual  mode  of  unloading.  The  usage 
so  defined  appears  to  be  identical  with  that  of  the  port  of 
Marseilles,  as  recognized  in  a  decision  of  the  Admiralty  in  1748. 
(1  Valin,  530.)  Similar  usages  have  been  sustained  in  London, 
in  the  Turkey  trade,  (Drumage  v.  Jolliffe,  Abbott  on  Ship.  250, 
Story's  ed.  1829,)  and  at  New  York,  in  our  own  coasting  trade, 
(Warren  v.  Crocheron,  N.  Y.  Com.  PI.,  Oct.  26th,  1827,  pub- 
lishal  the  following  day  in  the  Statesman.) 

But,  independently  of  usage,  and  without  reference  to  the  law 
concerning  land  carriers  or  coasting  traders,  who  are  presumed 
to  be  conversant  with  persons  and  localities  at  e^ch  end  of  their 
r*90'l  transit,  *the  question  here  presented  depends  upon 
•-  J  principles  exclusively  applicable  to  the  case  of  vessels 
arriving  from  foreign  parts.  In  this  point  of  view  the  question 
is  one  of  general  law,  and  must  be  decided  by  some  rule  which 
we  would  be  content  to  see  reciprocated  in  its  application  to  the 
ships  of  our  own  countrj^men,  when  abroad.  At  the  season  of 
unlading  the  master  has  a  variety  of  duties  to  perform,  which 
render  it  impossible  for  him  to  hunt  out  each  individual  con- 
signee on  shore.  It  is  not  his  business  to  be  conversant  with 
the  requisit'i  of  such  a  pursuit.  The  vessel  may  perhaps  be 
own^d  and  manned  by  foreigners,  of  whom  not  one  is  acquainted 
with  so  much  as  the  language  of  the  place  of  arrival.  Even  in 
a  case  like  the  present,  where  the  ship  reaches  her  home,  the 
master  and  owner  ought  not  to  continue  subject  to  responsibility 
after  they  are,  to  all  intents  and  purposes,  deprived  of  their  con- 
trol over  the  cargo  by  the  operation  of  the  revenue  laws.  The 
consignee,  on  the  other  hand,  is,  or  ought  to  be,  familiar  with 
the  means  proper  to  be  used  in  order  to  obtain  possession  of  his 
own  particular  consignment.  He  knows  of  the  shipment  through 
his  letter  of  advice.  He  also  knows  when  the  vessel  arrives,  or 
(what  is  the  same  thing)  he  is  bound  to  know  it.  According  to 
the  rules  of  the  law-merchant,  he  is  not  excusable  for  ignorance 
of  her  arrival  in  port.  (Harman  v.  Clarke,  4  Campb.  1 59 ;  Holt 
226 


ifa>-cA  27, 1829.]     OF  PENNSYLVANIA.  205 

[Cope  et  al.,  trading  under  the  firm  of  Thomas  P.  Cope  &  Sons,  v.  Cordova.] 

on  Ship.  395,  ed.  1824.)  Upon  the  ship's  arrival,  either  he 
takes  out  a  permit  or  he  does  not.  If"  he  does  take  one  out,  he 
is  necessarily  reminded  to  send  to  the  vessel  for  the  articles  upon 
which  he  pays  the  duty.  If  he  does  not  pay  the  duties,  the 
goods  cannot  be  touched,  either  by  himself  or  by  the  ship  owner, 
iioth  must  submit  to  the  act  of  congress,  which  provides  that 
the  goods  shall  be  carried  from  the  vessel  to  the  custom-house. 
All  this  time  they  remain  in  the  custody  of  the  law.  Now  it  is 
a  fundamental  maxim  that  the  act  of  law  shall  work  no  wrong. 
It  would  be  a  very  great  wrong  to  continue  a  man's  liability 
after  compulsorily  divesting  him  of  all  control  over  the  subject 
of  that  liability.  Upon  the  strictest  rule,  a  carrier's  liability  is 
of  necessity  at  an  end  when  nothing  remains  to  be  done  by  him 
in  his  capacity  of  carrier.  The  extent  of  his  duties  in  this  re- 
spect must  vary  according  to  the  description  of  carriage  under- 
taken. Consequently,  this  case  is  not  to  be  governed  by  au- 
thorities bearing  upon  the  duties  of  carriers  by  land  or  by  inland 
navigation,  or  river  craft.  Among  vessels  which  make  sea  voy- 
ages, some  distinction  should  also  be  made  between  those  em- 
ployed in  the  coasting  trade,  whose  cargoes  are  not  subject  to 
the  custom-house  regulations,  and  ships  from  foreign  countries. 
As  to  such  ships,  thus  arriving  from  sea,  it  is  settled  law  that 
the  liability  of  tlieir  owner  or  master,  as  a  carrier,  is  at  an  end 
as  soon  as  the  thing  carried  is  safely  deposited  in  the  usual 
manner  on  the  usual  wharf.  (Hyde  v.  Trent,  5  T.  R.  339 ; 
Chickering  v.  Fowler,  4  Pick.  371 ;  Abbot,  [Story's  ed.  of  1829] 
249 ;  1  Valin,  636,  637.) 

If  the  general  doctrine  were  not  so  clear,  the  same  result 
might,  *in  the  present  case,  be  fairly  contended  for  r*o/^f.-i 
upon  a  narrower  ground.  For,  inasmuch  as  the  con-  L  '^  J 
signee  chose  to  send  his  own  servant  to  the  wharf  to  receive  the 
goods  in  question,  and  thus  designated  the  wharf  as  the  place  of 
delivery,  he  must  be  understood  to  have  taken  the  goods  into 
his  own  custody,  and  to  have  dispensed  with  any  duty  of  the 
carrier  in  this  respect,  which  he  might  otherwise  have  claimed 
to  assert  (Sparrow  v.  Caruthers,  Str.  1236,  Strong  v.  Natally,  4 
Bos.  &  Pul.  16 ;  5  T.  R.  396,  per  Ashurst,  J.) 

For  the  defendant  in  error  the  question  was  stated  by  his 
counsel  to  be,  not  whether  the  wharf  was  the  proper  place  of 
delivery,  as  had  been  contended  on  the  other  side,  but,  whether 
there  had  in  fact  been  any  delivery  at  all  of  the  crate  in  ques- 
tion, to  anybody,  either  at  the  wharf  or  elsewhere.  Ostrauder 
V.  Brown,  15  Johns,  38.  To  deliver  the  goods  he  carries  is  the 
most  important  part  of  the  carrier's  contract.  That  the  defend- 
ants below  understood  their  own  duties  in  this  respect  appears 

227 


206  SUPREME  CXDURT  [Philadelphia, 

[Cope  et  al.,  trading  under  the  firm  of  Thomas  P.  Cope  &  Sons,  v.  Cordova.] 

from  the  fact  found  in  the  special  verdict ;  that  they  stationed 
their  clerk  upon  the  wharf,  as  was  their  practice,  to  take  an  ac- 
count of  the  delivery  of  the  cargo  in  a  book  specially  appropri- 
ated to  that  purpose  and  no  otlier.  This  constituted  of  itself  an 
undertaking,  independently  of  their  general  duty,  to  manage 
and  superintend  the  discharge  and  delivery  of  the  cargo  in  all 
its  details.  Now  the  question  occurs — What  is  a  delivery  ? 
The  answer  may  be  found  in  the  definition  of  a  bill  of  lading, 
an  engagement,  which  in  substance  as  well  as  in  form,  includes 
a  duty  to  keep  the  goods  until  they  are  received  into  the  actual 
possession  of  the  consignee,  or  his  assigns.  A  constructive  or 
imaginary  transfer  of  the  possession  is  no  delivery.  To  hold  it 
to  be  so  would  be  repugnant  to  principles  which  lie  at  the  very 
foundation  of  the  law  of  carriers.  (Garnett  v.  Willan,  5  I5arnw. 
&  Aid.  53 ;  Duff  v.  Budd,  3  Brod.  &  Bing.  177.)  It  would  be 
in  effect  to  hold  that  a  carrier  would  comply  with  his  engage- 
ment safely  to  deliver  the  merchandise  carried,  by  merely  put- 
ting it  down  unprotected  upon  a  wharf,  open  to  the  weather  and 
exposed  to  the  pilferer,  to  remain  there  over  night,  unless  called 
for,  without  even  the  safeguard  of  a  single  watchman.  Many 
actions  have  been  sustained  against  carriers  for  delivering  goods 
to  the  wrong  persons.  A  single  such  instance  would  suffice  to 
prove  that  the  carrier  is  bound  either  to  find  the  proper  person, 
or  at  least  to  keep  the  goods  safely  until  the  proper  person  comes 
to  take  them.  As  to  the  authorities  cited ;  to  that  of  Valin  and 
the  case  in  4  Pickering,  371,  we  oppose  the  decision  of  the 
Supreme  Court  of  New  York  in  Ostrander  v.  Brown,  already 
cited,  and  the  obvious  leaning  of  Cliancellor  Kent,  twice  mani- 
fested in  his  Commentaries,  (2  K.  Comm.  469 ;  3  Id.  170.)  In 
the  case  in  5  T.  R.  389,  so  much  pressed  upon  us,  the  remarks 
of  the  three  judges  which  are  relied  on  by  the  other  side  were 
entirely  extrajudicial.  These  remarks  were  adapted  to  a  state 
of  things  which  does  not  here  exist.  In  England  the  interven- 
r*2071  *^°^  ^^  wharfingers,  who  are  distinct  bailees,  *inter- 
•-  -'  posed  between  the  ship  owner  and  the  freighter  for  the 
accommodation  and  security  of  both,  may  have  introduced  there 
an  appropriate  principle  of  decision,  which  would  be  utterly  in- 
applicable to  the  case  of  vessels  discharging  their  cargoes  at  the 
port  of  Philadelphia. 

As  to  the  custom  of  our  port,  the  special  verdict  finds  that 
the  wliarf  is  the  usual  place  of  landing  goods  as  taken  from  the 
vessel.  Where  else  could  they  be  landed?  How  does  this 
prove  a  custom  that  when  the  goods  are  thus  landed,  their  de- 
livery is  complete,  or  the  duties  of  the  carrier  in  this  respect 
ended?  Even  though  such  an  inference  were  deducible,  the 
argument  could  not  avail  the  carrier.  In  Ostrander  v.  Brown, 
228 


March  27,  3829.]   OF  PENNSYLVANIA.  207 

[Cope  et  al.,  trading  under  the  firm  of  Thomas  P.  Cope  &  Sons,  ?;.  Cordova.] 

(15  Johns.  39,)  the  court  reject  al  the  evidence  offered  for  the 
purpose  of  proving  that  precisely  such  an  usage  prevailed  at 
Albany.  The  custom  of  the  river  Thames  has  been  found  and 
decided  upon  directly  to  the  point,  that  the  carrier  to  London 
is  not  discharged  of  his  engagement  to  deliver  the  goods  carried, 
by  landing  them  upon  the  usual  wharf.  (Wardell  v.  Mowrill- 
yan,  2  Esp.  603.)  Such  a  custom  would  be  a  violent  encroach- 
ment on  the  common  law ;  and,  moreover,  it  would  be  both 
unreasonable  and  inconvenient.  The  discharging  of  a  cargo 
occupies  several  days.  Each  consignee  would,  upon  the  doc- 
trine contended  for  on  the  other  side,  be  separately  put  to  the 
same  expense  and  trouble  to  secure  the  receipt  of  his  own  par- 
ticular assignment,  which  if,  on  the  contrary,  the  duty  were 
devolved  upon  the  carrier,  as  we  contend  it  ought  to  be,  might, 
at  a  comparatively  trifling  inconvenience  be  borne  by  him  for 
the  common  benefit  of  all. 

The  rev^enue  laws  do  not  operate  so  as  to  vary  the  case.  When 
the  consignee  pays  or  secures  the  duties,  he  receives  his  permit, 
and  thenceforth  deals  altogether  with  the  master  or  owner  of  the 
vessel,  without  reference  to  the  officers  of  the  customs.  The  act 
of  congress  was  never  intended  to  interfere  with  the  regular 
course  of  dealing  between  the  owner  of  the  ship  and  the  owners  of 
her  cargo.  The  policy  of  all  such  enactments  is  to  leave  the  respec- 
tive rights  of  the  parties  unimpaired,  and  their  duties  unaltered ; 
(Wilson  y.  Kymer,  1  Maule  &  Selw.  167  ;  Plolt  on  Ship.  395-6 ; 
Northey  v.  Field,  2  Esp.  613  ;  Nix  v.  Olive,  Abbott  on  Ship.  393.) 
The  duties  once  secured,  tlie  goods  on  board  are  no  longer 
in  the  custody  of  the  law.  Where  the  consignee  does  not  take 
out  his  permit,  the  goods  may  indeed  be  said  to  remain  in  the 
custody  of  the  law.  But,  even  then,  the  possession  of  the  law 
is  the  possession  of  the  ship  owner  for  all  purposes,  except  the 
mere  collection  of  the  duties,  until  the  actual  receipt  of  the 
goods  by  the  consignee  or  on  his  behalil  The  lieu  for  the 
freight  continues  even  after  the  goods  are  warehoused  in  the 
custom-house ;  so  the  consignor  may  stop  them  in  transitu.  This 
is  quite  irreconcilable  with  the  idea  of  their  having  been  delivered. 

Li  reply,  the  counsel  for  the  plaintiffs  in  error  said  that  the 
question,  what  constitutes  the  performance  of  a  carrier's  con- 
tract, *must  depend  upon  principles  very  different  from  r+nrjo-i 
those  which  govern  the  doctrine  of  stoppage  in  transitu.  L  J 
The  analogy  contended  for  on  the  other  side  would  not  help  the 
case,  if  pursued  in  all  its  consequences.  For  instance,  a  deliv-ery 
of  part  of  the  goods  carried  is,  for  all  the  purposes  of  the  law  of 
stoppage  in  transitu,  equivalent  to  a  delivery  of  the  whole.  Now, 
while  we  do  not  claim  the  benefit  of  such  an  absurditv  as  the 

229 


208  SUPREME  COURT  [Philadelpkia, 

[Cope  et  al.,  trading  under  the  firm  of  Thomas  P.  Cope  &  Sons,  v.  Cordova.] 

extension  of  this  rule  to  the  case  of  a  carrier,  we  also  protest 
against  the  argument  that  the  termination  of  the  transitus  for  the 
purpose  of  stoppage  is  in  all  cases  to  determine  the  question, 
whether  a  carrier's  duty  is  ended.  Suppose  the  goods  burnt  in 
the  custom-house,  is  it  contended  that  the  ship  owner  would  be 
answerable  ?  If  not,  where  shall  we  draw  the  line  ?  The  argu- 
ment proves  too  much ;  since,  if  good  for  any  thing,  it  musi 
needs  result  in  these  conclusions.     - 

So  it  is  said,  that  after  the  goods  are  landed  the  carrier  has  a 
right  to  retain  (or,  more  properly,  resume)  the  possession  for  the 
purpose  of  collecting  his  freight.  He  undoubtedly  has  the  right, 
but,  like  every  other  right,  it  may  be  waived  by  the  party  for 
whose  benefit  it  is  exerciseable.  Now,  suppose  he  does  waive  it, 
is  he  to  continue  nolens  volens  in  possession  by  construction  of 
law  ?  Surely  not.  But,  on  the  other  hand,  suppose  he  chooses 
to  exercise  the  right ;  does  it  follow  that  the  goods  are  therefore 
to  remain  at  all  events  in  his  custody  as  carrier?  If,  after 
the  carrier's  duties  are  complied  with,  the  thing  carried  remains 
in  his  possession,  he  does  not  continue  to  hold  it  as  carrier,  but 
becomes  a  bailee  of  another  description.  As  such,  he  is  not 
liable  for  accidental  loss,  as  a  carrier  would  be,  and  as  here  con- 
tended on  the  other  side.  Garside  v.  Trent,  4  T.  R.  581 ;  Webb 
et  al.,  8  Taunt.  443. 

If  the  object  of  the  cargo  book  be,  as  in  the  case  stated,  the 
information  only  of  the  ship  owner,  it  cannot  operate  so  as  to 
superinduce  or  create  a  liability  on  his  part,  which  the  law 
would  not  otherwise  recognize.  This  is  a  necessary  check  in 
his  hands  upon  the  officers  of  the  customs,  as  well  as  upon  those 
of  the  vessel.  It  is  a  memorandum  made  to  correspond  in  sub- 
stance with  a  part  of  the  entry  in  the  book  of  the  inspector  on 
board  prescribed  by  the  act  of  congress.  Without  it,  the  ship 
owner  could  not  ascertain  whether  the  bills  of  lading  were  true 
or  false ;  whether  the  goods  mentioned  in  the  manifest  were,  or 
were  not,  on  board  the  vessel  when  she  arrived,  what  progress 
was  making  towards  completing  the  unlading,  nor  could  he  take 
proper  measures  to  collect  the  freight.  It  would  seem  that  the 
cargo  book  in  this  case  contains  no  entry  about  the  crate  in 
question.  But  this  is  immaterial  to  the  decision,  because  it  is 
expressly  found  that  this  crate  was  actually  landed  on  the  wharf, 
which  is  all  that  the  law  requires. 

The  definition  of  the  bill  of  lading  should  be  something  more 
than  a  bare  repetition  of  the  words  it  contains.  Every  contract 
expressed  in  formal  terras  must  include  a  designation  of  the  party 
to  whom  its  performance  is  promised,  and  of  the  party  to  whose 
r*9nQl  *^"^fi*  ^^^^^  performance  is  to  inure.  By  the  bill  of 
L  -I  lading  the  carrier  promises  to  deliver  safely  to  the  con- 
230 


3fan-h  27,  lS2d.]     OF  PEXXSYLVAXIA.  209 

[Cope  et  al.,  trading  under  the  firm  of  Thomas  P.  Cope  &  Sons,  v.  Cordova.] 

siguee  or  his  assigns.  Then  what  is  a  delivery  to  him  or  his 
assigns?  The  answer  is,  the  depositing  the  goo<ls  carried  at 
their  destined  port  at  the  nsuul  place  of  landing  them.  As  to 
the  case  in  15  Johns.  39,  the  report  is  not  very  clear  upon  the 
fact  whether  the  consignee  had  liad  notice  of  the  sloop's  arrival 
at  Albany,  but  the  counsel  and  the  court  appear  to  have  taken 
it  for  granted  that  he  had  not  had  such  notice.  Now,  as  this 
was  the  case  of  a  coasting  vessel,  the  consignee  was  entitled  to 
expect  notice  of  her  arrival,  (4  Pick.  371)  although  we  have 
seen  that  it  is  otherwise  with  ships  from  foreign  countries.  Un- 
less this  were  the  ground  of  decision,  the  case  may  be  denied 
to  be  law.  The  most  authoritative  definitions  of  the  contract  of 
affreightment  do  not  by  any  means  include  the  alleged  essential 
of  an  actual  manual  tradition  to  the  freighter  or  his  agent.  The 
bill  of  lading  has  been  described  as  "  merely  an  undertaking  to 
carry  from  port  to  port."  (5  T.  11.  397,  per  Buller,  J.,  66.) 
In  Beawes,  114,  there  is  an  appropriate  definition.  He^  there 
says  of  the  charter  party,  "  It  settles  the  agreement,  as  the 
bill  of  lading  does  the  contents  of  the  cargo,  and  binds  the 
master  to  deliver  them  well  conditioned  at  the  place  of  dis- 
charge, according  to  the  agreement." 

The  opinion  of  the  court  was  delivered  by 

Rogers,  J. — The  substance  of  a  bill  of  lading  is  a  formal 
acknowledgment  of  a  receipt  of  goods,  and  an  engagement  to 
deliver  them  to  the  consignee  or  his  assigns.  And  this  suit 
is  brought  on  an  alleged  breach  of  such  a  contract  in  the  non- 
delivery of  a  crate  of  merchandise  shipped  on  board  the  ship 
Lancaster  from  Liverpool,  and  consigned  to  Raphael  Cordova 
in  the  usual  form.  The  goods  were  landed  on  the  wharf  of  the 
Liverpool  packets,  and  whether  this  amounts  to  a  delivery  to 
the  consignee  is  the  principal  question.  It  must  be  conceded, 
that  by  the  general  custom,  the  liability  of  ship  owners  is  at  an 
end  when  the  goods  are  landed  at  the  usual  wharf,  and  this 
seems  to  be  taken  by  the  whole  court  as  a  position  not  open  to 
dispute  in  the  strongly  contested  case  of  Hyde  v.  The  Trent 
and  Mersey  Navigation  Company,  5  T.  R.  394 ;  3  Wilson,  429 ; 
15  Johns.  41  ;  2  W.  Black.  916 ;  4  T.  R.  581. 

The  usage  in  France,  although  not  uniform,  in  every  particu- 
lar, goes  to  the  whole  extent  of  the  English  doctrine.  At  Ro- 
chelle,  when  the  vessel  is  moored  at  the  wharf,  the  merchant 
freighters,  at  their  own  expense  and  risk,  have  their  merchan- 
dise deposited  upon  the  deck  of  the  vessel.  From  the  time 
when  they  reach  the  deck,  it  is  the  business  of  the  hands  on 
board  to  receive  and  place  them  in  their  proper  situation.  In 
unlading,  the  freighters  have  them  taken,  in  like  manner,  from 

231 


209  SUPIIEME  COURT  [Pkiladdphia, 

[Cope  et  al.,  trading  under  the  firm  of  Thomas  P.  Cope  &  Sons,  v.  Cordova.] 

the  (lec'k  by  their  porters,  to  lower  them  to  the  wharf,  from 
wliich  time  they  are  at  the  merchant's  risk,  without  any  lia- 
bility on  the  part  of  the  master  of  the  vessel,  if  they  happen 
to  sustain  any  damage  as  they  are  lowered  from  the  vessel.  At 
r*9IO"l  *^I^i'S6illes,  it  is  the  business  of  the  master  to  put  the 
■-  J  merchandise  on  the  wharf,  after  which  he  is  discharged. 
1  Valin,  510. 

And  this  rule  of  the  French  commercial  code  is  cited,  with 
approbation,  by  the  learnetl  commentator,  in  page  636  of  his 
Treatise  on  the  Marine  Ordonuance.  As  the  master,  in  con- 
formity with  the  prevailing  usage  in  this  raspect,  upon  his  arri- 
val deposits  in  the  custom-house  a  manifest  or  general  list  of 
the  cargo,  with  a  designation  of  all  the  individuals  to  whom 
each  parcel  of  the  merchandise  should  be  respectively  delivered, 
and  as  there  are  always  officers  of  the  customs  who  attend  to 
the  unloading,  to  superintend,  and  make  a  list  of  all  the  mer- 
chandise which  leaves  the  vessel,  for  the  purpose  of  ascertaining 
whether  the  manifest  of  the  cargo  which  has  been  furnished  is 
accurate  and  faithful,  and  by  this  means  the  list  of  these 
officers  constitute  a  proof  of  the  landing  of  the  merchandise, 
it  is  the  end  of  the  engagement  which  the  master  has  contracted 
by  the  bill  of  lading.  If  then  dispute  arise,  it  is  only  when  in 
the  bustle  of  a  hasty  discharge  mistakes  occur  on  the  part  of 
those  who  convey  the  merchandise  to  the  warehouses,  by  intro- 
ducing articles  into  one  which  ought  to  have  gone  to  another. 
The  error  is  almost  always  discovered  by  ascertaining  what  parts 
of  the  cargo  of  the  vessel  have  been  conveyed  to  the  different 
warehouses.  "But  if  it  happens,"  says  the  commentator, 
"  that  the  error  cannot  be  discovered,  the  master  is  always  dis- 
charged when  it  appears  by  the  list  of  the  officers  of  the  royal 
customs  that  he  has  caused  all  the  merchandise  in  his  bills  of 
lading  to  be  placed  on  the  wharf."  The  ordinances  of  E-ochelle 
and  Marseilles  are  the  text  from  which,  in  the  manner  of  our 
own  commentators,  he  proceeds  to  deduce  the  general  custom. 
I  understand  from  the  observations  of  the  commentator,  that 
the  usage  is  not  confined  to  Rochelle  and  Marseilles,  but  that  in 
France,  as  in  Great  Britain,  it  is  co-extensive  with  the  limits  of 
the  kingdom  ;  and  in  this  country  we  are  not  without  authority 
to  the  same  purpose.  The  usage  has  been  found  to  prevail  in 
a  sister  city,  as  appears  from  a  case  the  name  of  which  is  not 
now  recollected,  lately  determined  by  Judge  Irving,  in  New 
York.  The  same  point  has  also  been  ruled  by  the  Supreme 
Court  of  Massachusetts,  in  Chickering  v.  Fowler,  4  Pick.  371. 
A  promise  by  a  master  of  a  vessel  to  deliver  goods  to  a  consignee, 
does  not  require  that  he  should  deliver  them  to  the  consignee 
personally,  or  at  anv  particular  wharf.  It  is  sufficient,  if  he 
232 


March  27,  1829.]     OF  PENNSYLVANIA.  210 

[C!ope  et  al.,  trading  under  the  firm  of  Thomas  P.  C!ope  &  Sons,  v.  Cordova.] 

leaves  them  at  some  usual  place  of  unloading,  giving  notice  to 
the  consignee  that  they  are  so  left. 

There  is  an  obvious  policy  in  commercial  nations  conforming 
to  the  usages  of  each  other,  and  it  is  also  important  that  there 
be  a  uniformity  of  decisions  in  our  domestic  tribunals  on  mer- 
cantile questions.  As  there  will  be  great  convenience  in  the 
local  usage  conforming  to  the  general  custom,  it  will  be  incum- 
bent on  those  who  maintain  the  contrary,  to  make  the  exception 
from  the  rule  plainly  appear. 

In  unloading  a  vessel  at  the  port  of  Philadelphia,  it  is  usual  as 
*soon  as  articles  of  bulk,  such  as  crates,  are  brought  r^oi-j-i 
upon  deck,  to  pass  them  over  the  side  of  the  ship,  and  "-  ^ 
land  them  on  the  wharf.  The  owners  station  a  clerk  on  the 
wharf,  Avho  takes  a  memorandum  of  the  goods,  and  the  day  they 
are  taken  away,  and  this  for  the  information  of  his  employers. 
A  manifest  or  report  of  the  cargo  is  made  by  the  master,  and 
deposited  at  the  custom-house,  and  the  collector,  on  the  arrival 
of  the  vessel  within  his  district,  puts  and  keeps  on  board  one  or 
more  inspectors,  whose  duty  it  is  to  examine  the  contents  of  the 
cargo  and  superintend  its  delivery.  And  no  goods  from  a  for- 
eign port  can  be  unladen  or  delivered  from  the  ship  in  the 
United  States,  but  in  open  day,  between  the  rising  and  setting 
of  the  sun,  except  by  special  license ;  nor  at  any  time  without  a 
permit  from  the  collector,  which  is  granted  to  the  consignee 
upon  payment  of  duties  or  securing  them  to  be  paid.  The 
holders  of  a  bill  of  lading  are  presumed  to  be  well  informed  of 
the  probable  period  of  the  vessel's  arrival,  and  at  any  rate  such 
arrival  is  matter  of  notoriety  in  all  maritime  places.  The  con- 
signee is  previously  informed  of  the  shipment,  as  it  is  usual  for 
one  of  the  bills  of  lading  to  be  kept  by  the  merchant,  a  second 
is  transmitted  to  the  consignee  by  the  post  or  packet,  while  the 
third  is  sent  by  the  master  of  the  ship  together  with  the  goods. 
With  the  benefit  of  all  these  safeguards,  if  the  consignee  uses 
ordinary  diligence,  there  is  as  little  danger  in  this  country  as  in 
England  and  France,  of  inconvenience  or  loss,  whereas  the  risk 
would  be  greatly  increased  if  it  should  be  the  duty  of  the  ship 
owner  to  see  to  the  actual  receipt  of  the  goods,  and  particularly 
in  the  case  of  a  general  ship  with  numerous  consignments  on 
board,  manned  altogether  by  foreigners  unacquainted  with  the 
language  at  the  port  of  delivery.  I  have  taken  some  pains  to 
ascertain  the  opinion  and  practice  of  merchants  of  the  city  on 
this  question,  which  is  one  of  general  concern.  My  inquiries 
have  resulted  in  this,  that  the  goods,  when  landed,  have  hereto- 
fore been  considered  at  the  risk  of  the  consignee,  and  that  the 
general  understanding  has  been  that  the  liability  of  the  ship 
owner  ceases  upon  the  landing  of  the  goods  at  the  usual  wharf. 

233 


211  SUrREME  COURT  [Philadelphm, 

[Cope  et  al^  trading  under  the  firm  of  Thomas  P.  Cope  &  Sons,  v.  Cordova.] 

I  see  no  reason  to  depart  from  a  rule  Avliich  has  received  'such 
repeated  sanctions,  from  which  no  inconvenience  has  heretofore 
resulted,  and  which  it  is  believed  in  practice  has  conduced  to 
the  general  welfare. 

If  the  special  verdict  had  found  a  uniform  usage  in  the  one 
way  OT  tl>e  other,  we  should  have  held  ourselves  bound  by  the 
custom ;  for  I  fully  accede  to  the  princijile,  that  the  mode  of 
delivery  is  regulated  by  the  practice  of  the  place.  The  con- 
tract is  supposed  to  be  made  in  reference  to  the  usage  at  the 
port  of  delivery.  But  if  no  usage  had  been  found,  we  hold  it 
to  be  equally  clear,  that  we  should  be  governed  by  the  general 
custom. 

The  case  finds  that  the  consignee  obtained  a  permit  for  the 
landing  of  the  goods,  that  they  were  lauded  on  the  wharf,  that 
he  was  aware  the  master  was  employed  in  discharging  his  cargo, 
and  that  the  consignee  sent  his  own  porter  to  receive  and  take 
r*9i  9-1  them  away ;  *that  he  inquired  for  them,  but  did  not 
■-  -^  receive  them.  If,  under  such  circumstances  the  goods 
M'^ere  lost,  it  was  in  consequence  of  his  own  negligence  or  his 
servant's.  It  was  the  duty  of  the  porter,  instead  of  merely  in- 
quiring, to  stay  till  he  had  actually  received  the  goods. 

It  is  beside  the  question  to  say  that  perishable  articles  may 
be  landed,  at  improper  times,  to  the  great  damage  of  the  con- 
signee. When  such  special  cases  arise,  they  will  be  decided  on 
their  own  circumstances.  This  goes  on  the  ground  that  the 
master  has  acted  with  good  faith,  and  in  the  usual  manner,  and 
in  such  case  it  is  the  opinion  of  the  court  that  the  ship  owners 
are  discharged. 

We  would  wish  to  be  understood  as  giving  no  opinion  on  the 
law  which  regulates  the  internal  or  coasting  trade,  to  which  I 
understand  the  case  of  Ostrander  v.  Brown  and  Stafford,  15 
Johns.  39,  to  apply.  We  do  not  consider  this  decision  as  inter- 
fering with  the  principles  of  that  case. 

Judgment  reversed,  and  judgment  for  the  defendants 
below  upon  the  case  stated. 

Cited  by  Counsel,  6  Wh.  515 ;  6  W.  &  S.  64;  10  S.  114;  26  S.  413;  s.  c.  1 
W.  N.  C.  78 ;  14  N.  363. 

Cited  by  Court,  5  W.  &  S.  128. 

As  intimated  in  the  dictum  at  the  end  of  the  above  decision,  the  rule  there 
laid  down  does  not  apply  to  domestic  commerce.  A  carrier  must  in  such  case 
either  actually  deliver  the  goods,  or,  if  so  stipulated  in  the  bill  of  lading,  give 
proper  notice  to  the  consignee,  and  in  the  meantime  hold  them  as  a  warehouse- 
man. An  express  company,  however,  should  actually  deliver  goods:  American 
Express  Co.  v.  Robinson,  22  S.  274.  The  rule  as  stated  is  sustained  by  the  fol- 
lowing cases.  The  responsibility  of  a  carrier  upon  the  Ohio  River,  does  not 
cease  on  depositing  goods  on  the  wharf  and  notice  given  to  the  consignee : 
Hemphill  v.  Chenie,  6  W.  &  S.  62.  A  railroad  is  not  discharged  from  liability 
by  tendering  delivery  at  an  improper  time  (Saturday  evening) :  Eagle  v.  White, 

234 


JX/rc/i  27, 1829.]     OF   PENNSYLVANIA.  212 

[Cope  et  al.,  trading  under  the  firm  of  Thomas  P.  Cope  &  Sons,  v.  Cordova.] 

6  Wh.  505 ;  and  whether  the  time  was  proper  is  for  the  jury :  Hill  ?•.  Humphreys, 
5  W.  &  S.  123.  Where  the  bill  of  lading  provides  that  notice  will  Ije  given, 
the  carrier  after  such  notice  is  liable  onlv  a.s  a  warehouseman :  Shcnk  v.  Phila. 
Steam  Propeller  Co.  10  S.  109  ;  McCarty  v.  N.  Y.  &  E.  K.  R.,  6  C.  217.  Where 
delivery  is  expressly  promised  the  company  is  liable  for  not  delivering :  Penna. 
R.  R.  V.  Mitchell,  4  \V.  N.  C.  3.  .\nd  where  delivery  is  attempted  it  must  be  to 
the  right  party :  Shenk  v.  Propeller  Co.,  supra,  unless  the  goods  have  been  im- 
properly directed :  Lake  Shore  R.  R.  v.  llodapp,  2  xS .  22. 


[Philadelphia,  March  27,  1829.] 

Caldwell,  Administrator  of  Caldvvell,  Surviving  Partner 
of  Holmes,  against  Stileman. 

IN   ERROR. 

Though,  in  an  action  against  the  representatives  of  a  deceased  partner,  the 
evidence  of  the  insolvency  of  the  surviving  partner  be  not  satisfactorily  proved, 
yet  if  it  be  sworn  to,  and  the  defendant  demur  to  the  evidence,  it  must  be  taken 
as  proved. 

If  a  contract  be  made  with  a  firm,  to  do  a  certain  piece  of  work,  which  is  not 
finished  until  after  the  death  of  one  of  the  partners,  the  estate  of  that  partner 
is  liable,  provided  the  surviving  partner  be  insolvent. 

Though  on  a  demurrer  to  evidence,  judgment  will  not  be  given  if  the  decla- 
ration set  forth  an  illegal  cause  of  action,  or  no  cause  of  action,  yet  it  waives 
all  objections  merely  formal ;  and  what  would  be  cui-ed  by  a  verdict,  is  cured 
by  a  demurrer  to  evidence. 

Writ  of  error  to  the  District  Court  for  the  city  and  couuty 
of  Philadelphia. 

Richard  Stileman,  the  defendant  in  error  and  plaintiff  below, 
brought  this  action  against  John  Caldwell,  administrator  of 
Alexander  Caldwell,  deceased,  who  in  his  lifetime,  traded  in 
partnership  with  John  Holmes,  under  the  firm  of  Holmes  & 
Caldwell. 

The  suit  was  brought  to  March  Term,  1825,  and  the  declara- 
tion, which  contained  an  averment  of  the  insolvency  of  John 
Holmes,  was  for  w^ork  and  labour  done  and  performed  for  the 
firm  of  Holmes  &  Caldwell,  in  the  lifetime  of  the  said  Alexander 
Caldwell.  The  plaintiff  claimed  the  sum  of  one  hundred  and 
seventy  dollars  *and  thirteen  cents,  which  included  r^Qi.^-? 
work  done  and  delivered  before  the  death  of  Alexander  t  *"  ^J 
Caldwell,  as  well  as  work  done  and  delivered  to  John  Holmes, 
after  the  death  of  Caldwell. 

The  case,  as  disclosed  by  the  evidence  given  at  the  trial,  was 
briefly  as  follows  : — 

In  the  autumn  of  the  year  1824,  Holmes  and  Caldwell  en- 
tered into  partnership  in  the  business  of  making  machinery  for 
manufactories  of  cotton  and  wool.     They  made  an   aijreement 

235 


213  SUPREME  COURT  [Phiiadelphia, 

[Caldwell,  Administrator  of  Caldwell,  surviving  partner  of  Holmes  and  Cald- 
well, r.  Stileman.J 

with  Richard  Stilenian,  the  plaintiff  below,  who  was  a  black*- 
smith,  to  make  all  the  iron  work  for  their  machinery,  for  tw^elve 
and  a  half  cents  per  ponnd.     About  the  14th  of  Septemlxir, 

1 824,  Holmes  and  Caldwell,  entered  into  a  contract  with  Ber- 
nard M'Credy  to  make  for  him  a  stretcher,  which  was  to  he 
finished  in  six  weeks  or  two  months,  and  in  case  of  delay  in  de- 
livering the  work,  a  penalty  was  imposed  by  the  agreement. 
Stileman  was  employed  to  do  the  iron  work  for  the  stretcher. 
It  was  proved  by  one  witness,  that  Caldwell  went  to  Stileman, 
and  urged  that  the  shafts,  &c.,  of  a  horse  mill  should  go  on  as 
quickly  as  possible,  as  he  wanted  him  to  go  to  work  at  the 
stretcher ;  and  M'Credy  testified  that  Caldwell  told  him  he  had 
employed  Stileman  to  do  the  iron  work  for  the  stretcher.  Part 
of  the  work  for  the  horse  mill  was  sent  to  Holmes  and  Cald- 
w^ell's  manufactory  in  the  lifetime  of  Caldwell.  None  of  the 
work  for  the  stretcher  was  sent  there  until  after  his  death,  nor 
was  there  any  proof  that  Stileman  had  begun  to  work  at  it  when 
Caldwell  died.  From  his  own  books  it  seeiwed  that  he  had  not. 
Caldwell  died  on  the  6th  of  October,  1824,  and  Stileman 
knew  of  his  death. 

Holmes  carried  on  the  business  for  sometime  after  the  decease 
of  Caldwell,  and  gave  Stileman  an  order  on  M'Credy,  dated  the 
17th  November,  1826,  to  pay  him  for  the  iron  work  of  the 
stretcher,  made  by  Holmes  and  Caldwell.  This  order  M'Credy 
refused  to  acc(!pt,  because  it  was  not  signed  by  Holmes,  as  sur- 
viving partner.  He  offered  to  accept  it  if  this  were  done,  but 
it  was  not  done.  It  was  sworn  by  one  witness  that  Holmes  be- 
came insolvent  soon  after  Caldwell's  death ;  and  by  another, 
(M'Credy,)  that  he  made  an  assignment,  but  at  what  time,  was 
not  stated.     M'Credy  paid  the  assignees  for  the  stretcher. 

It  appeared  from  the  record,  that  on  the  15th  of  February, 

1825,  Holmes  gave  bond  to  appear  at  the  next  court,  &c.,  to 
take  the  benefit  of  the  insolvent  laws. 

From  Stileman's  books,  which  were  given  in  evidence,  it  ap- 
peared that  the  work  for  the  horse  mill  was  begun  on  the  1 3th 
of  September,  1824,  and  finished  on  the  20th  of  November, 
1824.  It  amounted,  in  the  whole,  to  eighty  dollars  and  thirty- 
seven  and  a  half  cents.  On  a  different  page  was  an  entry  of  iron 
work  for  M'Credy,  to  the  amount  of  ninety-four  dollars  and 
eighty  cents,  beginning  on  the  13th  of  Octol^er,  and  ending  on 
r*214l  *^^^  ^^*^  ^^  December,  *1824.  In  another  page,  what 
L  -I  was  called  the  "  Jobbing  Account-,"  beginning  on  the 
17th  of  September,  and  ending  on  the  20th  of  October,  1824, 
amounting  to  thirty  dollars  and  ninety-three  cents,  was  charged 
to  John  Holmes.  In  another  page,  another  account  to  the 
236 


Jfarc/i  27, 1829.]     OF  PENNSYLVANIA.  214 

[Caldwell,  Administrator  of  Caldwell,  surviving  partner  of  Holmes  and  Cald- 
well, V.  Stileman.]. 

qmount  of  five  dollars  and  thirty-six  cents,  beginning  on  the  21st 
of  December,  1824,  and  ending  on  the  10th  of  January,  1825, 
was  also  charged  to  him.  Credits  were  entered  on  the  5th  of 
November,  1824,  and  at  sundry  times  afterwards,  to  the  amount 
of  forty  dollars  and  sixty  three  and  a  half  cents. 

When  the  plaintiff  had  closed  his  case,  the  defendant  de- 
murred to  the  evidence.  The  plaintiff  joined  in  the  demurrer ; 
and  the  jury  assessed  damages,  conditionally,  for  the  whole  of 
the  plaintiff's  demand.  The  court  below  gave  judgment  for  the 
plaintiff. 

In  this  court,  the  following  specifications  of  error  were  filed  : 

First.  Because  there  is  not  in  the  evidence  demurred  to,  such 
proof  of  the  insolvency  of  John  Holmes,  the  surviving  partner, 
as  to  entitle  the  plaintiff  to  maintain  his  suit  against  the  admin- 
istrator of  the  deceased  partner,  at  the  time  and  in  the  manner 
the  suit  is  brought. 

Second.  Because  the  dealings  of  the  plaintiff  with  John 
Holmes,  the  surviving  partner,  after  the  death  of  Alexander 
Caldwell,  in  doing  new  work  and  delivering  to  him  work  con- 
tracted to  be  done  before  the  death  of  Alexander  Caldwell, 
form  a  bar  to  the  present  suit. 

Third.  Because,  under  the  declaration  filed  and  issue  joined, 
tlie  plaintiff  cannot  recover  for  any  work  done  and  performed 
after  the  death  of  Alexander  Caldwell. 

Bradford,  for  the  plaintiff  in  error. 

1.  The  evidence  of  the  insolvency  of  the  surviving  partner 
was  not  sufficient.  He  had  made  a  general  assignment  and 
given  bond  for  the  purpose  of  taking  the  benefit  of  the  insol- 
vent laws,  but  he  does  not  appear  ever  to  have  carried  that  pur- 
pose into  execution.  This  is  not  sufficient  evidence  of  insol- 
vency to  maintain  an  action  against  the  surviving  partner.  It 
is  settled  in  Pennsylvania  and  in  England,  that  where  the  sur- 
viving partner  is  insolvent,  the  creditor  has  a  remedy  against 
the  representatives  of  the  deceased  partner ;  but  the  insolvency 
required  must  be  actual,  positive,  and  legal.  It  must  be  averred 
and  proved,  that  he  has  been  discharged  by  an  insolvent  or  bank- 
rupt law.  The  creditor  has  no  equitable  remedy  against  the 
representatives  of  the  deceased  partner,  until  he  has  exhausted 
all  legal  remedies  against  the  survivor.  Lessee  of  Ross  v.  Eason, 
4  Yeates,  54 ;  Duerhagen  v.  The  United  States  Ins.  Co.,  2  Serg. 
&  Rawle,  185;  Lessee  of  Maus  v.  Montgomery,  11  Serg.  & 
Rawle,  329;  Bank  of  the  United  States  v.  Smith,  11  AVheat. 
171 ;  15  Johns.  57 ;  Heath  v.  Percival,  1  P.  Wms.  682;  Storer 

237 


214  SUPREME  COURT  [PJiiladelphia, 

[Caldwell,  Administratou  of  Caldwell,  surviving  partner  of  Holmes  and  Cald- 
well, V.  Stileman.j 

t>.  HerncHif,  Conn.  Rep.  147  ;  Daniel  v.  Cross,  3  Ves.  Jr.  277  ; 
Gray  r.  Chiswell,  9  Ves.  Jr.  125 ;  Van  Reirasdyke  v.  Kane,  1 
r*9ir-i  *Gall.  385;  Lang  u.  Keppele,  1  Binn.  123;  Marshall 
L  -'^'^■i  V.  Be  Groot,  1  Caines'  Ca.  in  Er.  122;  Lewis  v.  Cul- 
bertson,  11  Serg.  &  RaAvle,  48. 

2.  The  dealing  between  the  plaintiff  and  Holmes  after  the 
death  of  Caldwell  formed  a  separate  contract,  under  which 
the  representatives  of  the  deceased  partner  could  not  be 
charged.  The  general  agreement  to  work  at  a  given  rate,  was 
rescinded  by  the  dissolution  of  the  partnership,  which  was  the 
consequence  of  the  death  of  one  of  the  partners,  except  as  to 
work  actually  begun  under  that  contract. 

3.  The  declaration  being  only  for  work  done  before  the  de- 
cease of  Caldwell,  no  judgment  could  properly  be  given  for  what 
was  performed  after  that  event. 

Dallas,  for  the  defendant  in  error,  (who,  on  the  first  point, 
was  stopped  by  the  court,.)  answered,  that  the  contract  with  the 
plaintiff  was  entire,  and  could  not  be  divided.  It  related  to 
the  iron  work  of  all  jobs  that  were  to  be  finished  by  the  firm 
after  the  death  of  one  of  the  partners.  He  was  to  be  the  smith 
of  the  firm,  so  long  as  it  had  such  work  to  do.  The  work  was 
in  progress,  and  part  of  it  executed  before  the  death  of  the  de- 
ceased partner.  He  cited  2  Powell  on  Cont.  56  ;  Gow  on  Part. 
437,  440,  460;  Hammersly  v.  Lambert,  2  Johns.  Ch.  Rep.  508; 
Daniel  v.  Cross,  3  Ves.  Jr.  279. 

Huston,  J.,  (after  stating  the  facts,)  delivered  the  opinion  of 
the  court,  as  follows  : 

1.  As  to  the  insolvency  of  Holmes,  the  proof  is  not  very  sat- 
isfactory. But  one  witness  says,  he  became  insolvent ;  another, 
that  he  assigned,  and  the  record  showed  that  he  had  applied  for 
the  benefit  of  the  insolvent  acts.  This  suit  was  instituted  by 
writ  returnable  to  the  term  at  which  he  was  to  be  heard  as  an 
insolvent.  The  narr  states*  that  he  had  become  insolvent, 
and  was  totally  unable  to  pay,  &c. — issue  might  have  been 
taken  on  this. 

The  evidence,  as  offered,  might  some  of  it,  have  been  objected 
to,  but  was  not.  Instead  of  parol  evidence  that  he  assigned, 
the  assignment  must  have  been  produced.  A  bill  of  exceptions 
to  evidence  offered,  brings  up  the  question  of  the  legality  and 
competency  of  the  evidence.  If  the  evidence  is  admitted  with- 
out objection,  and  there  is  a  demurrer  to  it,  this  admits  that  the 
evidence  was  legal,  competent,  and  true,  and  brings  up  only 
238 


3Lirch  27,  lS2d.]     OF  PEXXSYLYANIA.  215 

[Caldwell,  Administrator  of  Caldwell,  surviving  partner  of  Holmes  and  Cald- 
well, V.  Stileman.] 

the  effect  of  it  on  the  right ;  every  fact  sworn  to,  or  sliown  by 
written  documents,  is  admitted  to  be  true ;  and  every  fair  infer- 
ence from  what  is  given  in  evidence,  is  to  be  taken  as  proved. 
Now,  it  was  expressly  sworn  that  he  was  insolvent.  It  Avas 
truly  said  by  the  late  Chief  Justice,  that  he  who  demurs  to  evi- 
dence, has  an  up-hill  business  of  it. 

I  admit  fully,  that  before  the  estate  of  a  deceased  partner 
can  be  made  liable,  it  ought  to  appear  that  the  surviving  partner 
was  unable  *to  pay,  and  I  would  not  advise  a  verdict  r^^^-.  ^  ■ 
for  the  plaintiff,  until  he  had  given  pretty  full  evidence  ^  -■ 
of  it.  I  think  a  jury  ought  to  presume  against  inconclusive 
and  defective  proof,  if  fuller  and  more  satisfactory  evidence  was 
possible.  The  representatives  of  a  deceased  partner  cannot 
meddle  with  partnership  property,  or  collect  the  credits,  until 
the  debts  are  paid.  The  fund  is  by  law  appropriated  to  cred- 
itors of  the  firm,  and  they  ought  to  show  that  it  is  exhausted 
before  they  resort  to  the  individual  estate  of  a  deceased 
partner. 

But  in  this  case  we  must  take  it  to  have  been  ]■> roved. 

2.  A  partnership  may  be  dissolved  by  the  parties  themselves, 
or  in  some  cases  by  one  of  them — by  the  bankruptcy  of  one, 
or  by  the  death  of  one.  There  is,  in  some  respects,  a  difference, 
as  to  the  effect  of  a  dissolution  in  the  different  ways.  We  have 
here  to  consider  only  of  one,  a  dissolution  by  the  death  of  a 
partner ;  and  this  of  itself  works  a  dissolution,  and  so  entirely, 
that  want  of  notice  of  it  does  not  have  the  effect  of  making  the 
estate  liable  to  debts  contracted  by  surviving  partners,  or  for 
their  misconduct.  This  has  been  complained  of,  reconsidered, 
and  I  consider  it  settled,  and  rightly  settled  ;  l)ut,  from  the 
nature  of  the  transactions  of  men,  and  from  the  uncertainty  of 
the  time  when  one  may  die,  (or  the  partnership  be  dissolved  in 
some  other  way,)  contracts  may  be  made,  and  engagements  en- 
tered into,  which  are  not  complied  with  at  the  dissolution  ;  and, 
for  the  purpose  of  malcing  good  these  engagements,  the  part- 
nership must  have  a  legal  continuance,  though  determined  as 
between  themselves,  for  every  other  purpose.  Under  what  par- 
ticular circumstances  and  by  what  particular  engagements  it 
will  be  so  continued,  and  to  what  effect,  even  after  the  death  of 
one  partner,  is  not  easy  to  define.  The  wisest  judges  have  not 
been  able  to  establish  any  universal  rule ;  and  the  more  there 
is  known  of  the  bilsiness  of  this  life  and  the  diversity  of  en- 
gagements, so  much  more  strongly  will  the  difficulty  of  any 
general  rule  without  exception,  strike  the  mind. 

As  to  a  specific  contract  to  do  a  particular  thing,  there  is  no 

239 


216  SUPREME  COURT  [Philadelphia, 

[Caldwell,  Administrator  of  Caldwell,  Mirviving  partner  of  Holmes  and  Cald- 
well, V.  Stileman.] 

difficulty.  I  incline  to  think  that  generally,  a  continuing  agree- 
ment, to  do  all  Avork  of  a  certain  description,  to  deliver  all  flour, 
or  whiskey,  or  cotton,  or  tobacco,  &c.,  Ac,  is  not  within  the  rule, 
for  if  it  were,  the  survivors  could  continue  the  j)artnership  as 
long  as  they  could  get  the  old  hands  to  work,  or  old  customers 
to  continue  dealing;  in  such  cases  all  work  done  on  orders  not 
given  in  the  lifetime  of  the  deceased — all  articles  delivcjred  after 
his  death  must  generally  be  considered  as  chargeable  to  the 
survivors  only.  The  interest  of  the  deceased  is  fixed  by  the 
state  of  affairs  at  his  death,  or  at  most,  when  contracts,  at  his 
death,  are  completed.  An  agreement  to  do  a  jjarticular  job, 
may  bind  the  estate  of  the  deceased,  but  not  an  agreement  to 
do  all  work,  all  jobs,  at  the  same  rate.  This  would  keep  the 
estate  of  the  deceased  liable  for  years.  If  it  cannot  be  held 
liable  for  years,  we  can  fix  no  time  except  death,  and  engage- 
r*2l71  "^^"*^  *then  specific.  In  this  case  the  evidence  is,  that 
•-  J  Caldwell,  in  his  lifetime  intimated  to  Stileman,  he  was 
to  do  this  work  ;  at  another  time  he  urged  him  to  expedite  the 
work  of  the  horse  mill,  that  he  might  begin  this ;  and  he  told 
M'Credy,  Stileman  was  to  do  it.  There  was  no  error  in  includ- 
ing this  in  the  verdict.  The  horse  mill  was  clearly  begun  in 
Caldwell's  lifetime  :  as  to  the  job  work,  this  is  before  us  uncer- 
tain. The  extract  from  the  books  is  so  short,  we  do  not  see  it 
as  fully  as  the  court  and  jury  who  had  the  books — it  is  all 
charged  to  J.  Holmes.  We  have  no  evidence  that  any  of  it 
was  ever  chargeable  to  the  firm,  or  is  now  chargeable  on  defend- 
ant ;  but  the  credits  would  seem  to  be  all  entered  to  this  ac- 
count, and  exceed  the  debits.  There  is  then,  no  injury  to  the 
plaintiff  in  error  by  taking  in  this. 

3.  The  third  objection  remains  to  be  considered.  It  is  true 
that  on  this  declaration  the  plaintiff  could  not  have  given  evi- 
dence of  work  done  after  Caldwell's  death,  but  it  was  permitted 
to  be  given  without  objection.  It  was  then  contended  that  in  no 
event  was  Caldwell's  estate  liable  for  this  :  it  was  found  that  for 
work  contracted  for  in  his  lifetime,  his  estate  is  liable,  and  then 
exception  is  taken  that  the  allegata  and  probata  do  not  agree. 
It  is  too  late.  I  do  not  say  that  on  a  demurrer  to  evidence  we 
will  so  far  disregard  the  pleadings  as  to  give  judgment  when  the 
narr  states  no  cause  of  action,  or  an  illegal  cause.  But,  I  do 
say,  and  all  the  cases  warrant  me  in  saying,  that  it  waives  all 
objections  merely  formal,  and  what  would  be  cured  by  a  verdict 
is  waived  by  a  demurrer  to  evidence.  What  is  contended  for 
here  would  make  it  a  demurrer  to  the  narr,  a  bill  of  exceptions 
to  testimony,  a  motion  for  a  new  trial,  and  a  motion  in  arrest  of 
240 


March  27, 1S29:]    OF  PENNSYLVANIA.  217 

[Caldwell,  Administrator  of  Caldwell,  surviving  partner  of  Holmes  and  Cald- 
well, V.  Stileman.] 

judgment.  Now,  it  is  neither  of  the  three  first,  and  after  a  de- 
cision of  court  on  tlie  law,  as  arising  on  the  facts,  it  can  never  be 
the  last,  except  as  I  said,  in  case  of  a  total  and  radical  defect. 

Judgment  affirmed. 

Cited  by  Counsel,  1  Penn.  E.  201 ;  3  Wh.  391;  3  W.  486;  5  W.  &  S.  214, 
337-;  lOBarr,  124;  3  G.  92. 


♦[Philadelphia,  March  27, 1829.]  [*218] 

Butz  against  Ihriei. 

Time  does  not  begin  to  run  against  a  privilege  reserved  in  a  deed,  until  some 
default,  negligence,  or  acquiescence  is  shown,  or  may  be  fairly  presumed,  in 
the  jmrty  in  whose  favour  such  reservation  is  made. 

Therefore  a  reservation  of  a  right  for  the  grantor  his  heirs  and  assigns,  to 
raise,  swell  and  dam  the  water  of  a  stream,  from  a  dam  intended  to  be  built 
on  his  own  land,  provided  the  same  is  not  raised  or  swelled  so  high  as  to  in- 
jure and  damage  the  mill  granted  by  the  deed,  is  not  barred,  forfeited,  or  lost 
by  the  lapse  of  thirty-two  years,  from  the  time  the  right  was  reserved,  to  the 
time  of  building  the  dam,  in  pursuance  of  that  right. 

An  injury  to  the  grantor's  mill-race,  is  an  injury  to  his  mill,  for  which  he 
is  entitled  to  damages. 

Though  the  words  of  the  deed  be  "  a  dam,"  &c.,  yet  the  substance  of  the 
reservation  is  of  a  privilege  to  overflow  the  land,  without  injuring  the  grantor's 
mill,  and  whether  this  be  done  by  one  dam  or  by  more  than  one,  is  not 
essential. 

This  case  came  on  for  trial  before  the  Chief  Justice  in  the 
Circuit  Court  of  Northampton  county,  at  Easton,  on  the  11th  of 
April,  1828. 

The  action  was  originally  instituted  in  the'Court  of  Common 
Pleas,  of  Northampton  county,  on  the  8th  of  November,  1826, 
by  David  Butz,  and  Daniel  W.  Butz,  against  Peter  Ihrie,  the 
elder,  to  jecover  damages  for  a  nuisance  caused  by  the  defend- 
ant in  the  erection  of  a  division  dam,  which,  it  was  alleged,  made 
the  waters  of  the  Bushkiln  creek  jflow  back  upon  the  land  of  the 
plaintiffs,  and  injure  their  saw-mill,  and  grist-mill.  On  the  15th 
of  January,  1827,  the  cause  was  removed  by  the  plaintiffs  into 
the  Circuit  Court.  David  Butz  subsequently  died  before  the 
declaration  was  filed. 

The  plaintiff's  mills  are  situate  on  the  Bushkiln  creek,  not  far 
from  its  junction  with  the  river  Delaware.  The  nearest  mill  to 
the  mouth  of  the  creek  is  on  its  north  bank,  and  belongs  to  Mr. 
Mixell.  On  the  south  bank,  a  few  rods  farther  up,  is  the  oil- 
mill  of  Peter  Ihrie,  the  defendant ;  a  few  rods  farther  is  the 
division  dam,  the  subject  of  the  present  controversy.  This  divi- 
sion dam  is  a  permanent  fixture  placed  in  the  bed  of  the  creek, 

VOL.  I.— 16  241 


218  SUPREME  COURT  [Philadelphia, 

Butz  V.  Ihrie. 

and  extending  from  bank  to  bank.  It  consists  of  a  log  laid  upon 
a  solid  foundation,  and  a  plank  eight  and  a  half  inches  wide 
erected  on  the  log.  Over  this  the  whole  volume  of  the  stream 
must  pass,  whether  the  water  be  high  or  low.  This  dam  is  but 
a  short  distance  below  the  line  of  the  plaintiff's  land.  Farther 
up  the  creek,  on  its  north  bank,  a  few  rods  from  the  division 
dam,  is  the  plaintiff's  saw-mill.  Above  the  saw-mill,  is  the 
mouth  of  the  tail-race  appurtenant  to  the  grist-mill,  which  is 
situate  still  farther  up  the  creek,  on  its  north  bank. 

The  plaintiff,  on  the  trial,  after  having  proved  possession  of 
the  mills,  gave  evidence  of  the  erection  of  the  division  dam,  by 
the  defendant  in  the  year  1825,  and  that  the  effect  of  it  was,  to 
r*oiQ-|  cause  *the  waters  of  the  creek  to  flow  back  over  the 
L  -I  plaintiff's  line,  and  into  the  tail-race  of  his  grist-mill. 
The  back  water,  it  was  proved,  came  much  sooner  into  the  tail- 
race  of  the  plaintiff's  grist-mill  since  the  laying  of  the  plank 
which  formed  part  of  the  division  dam  than  it  did  before ;  and 
one  witnass  testified  that  he  had  measured  from  two,  three,  four, 
tc  ten  inches  of  back  water  on  the  sheeting  when  there»was  a 
rise  in  the  creek.  The  plaintiff's  saw-mill  was  built  from  twenty- 
eight  to  thirty  years  before  the  trial  of  the  cause,  and  the  grist- 
mill before  the  Revolution.  A  great  deal  of  evidence  was  given 
relative  to  the  backing  of  the  water,  which  it  is  not  necessary 
now  to  state :  one  witness  swore  that  he  would  not  give  as  much 
for  the  grist-mill  with  the  back  water  on,  as  if  it  were  off. 

The  defendant  gave  in  evidence  a  deed,  dated  April  2d,  1792, 
between  the  executors  of  Peter  Koechliue  of  the  one  part,  and 
Jacob  Koechline  and  Peter  Ihrie  of  the  other  part,  which  em- 
braced the  premises  of  both  the  plaintiff  and  defendant ;  also  a 
deed  dated  12th  of  April,  1793,  by  Jacob  Koechline  and  wife, 
and  Peter  Ihrie  and  wife,  to  James  Ralston  and  John  Mulhallon, 
for  the  premises  now  the  property  of  the  plaintiff.  This  deed 
contained  an  exception  or  reservation  in  these  words,  viz. :  "  ex- 
cepting and  reserving  therefrom  to  the  said  Jacob  Koechline  and 
Peter  Ihrie,  their  heirs  and  assigns,  tenants  and  occupiers,  pos- 
sessing and  holding  a  certain  lot  or  piece  of  ground  situate  on 
Bushkiln  creek,  aforesaid,  below  and  adjoining  the  hereby  granted 
premises  commonly  known  by  the  name  of  'the  fulling  mill 
tract,'  the  full,  free,  and  absolute  right  and  privilege  to  raise, 
swell,  and  dam  the  water  in  the  said  creek  from  a  dam  intended 
to  be  built  on  the  said  fulling  mill  tract  upon  the  premises  here- 
by granted,  provided  the  same  is  not  raised  or  swelled  so  high  as 
to  injure  the  grist-mill  hereby  conveyed." 

On  the  9th  of  December,  1793,  a  deed  of  partition  was  exe- 
cuted between  Jacob  Koechline  and  wife,  and  Peter  Ihrie,  by 
which  as  well  the  tract  described  in  the  above  exception,  as 
242 


March  27, 1829.]     OF  PENNSYLVANIA.  219 

[Butz  V.  Ihrie.] 

"below  and  adjoining"  the  plaintiff's  tract,  as  the  water  power 
belonging  to  it,  was  divided  between  the  parties.  The  portion 
of  water  allotted  to  Jacob  Koechline,  was  that  afterwards  used 
for  the  purposes  of  Jacob  MixelFs  mill,  already  mentioned ;  and 
the  professed  object  of  the  division  dam  now  complained  of,  was 
to  divide  the  water  between  MixelFs  and  Ihrie's  mills. 

It  appeared,  from  the  evidence  given  by  the  defendant  on  the 
trial,  that  he  had,  thirty  years  before,  purchased  planks  to  be 
used  in  the  erection  of  a  mill :  That  the  old  works  erected  near 
the  site  of  the  defendant's  present  oil-mill,  and  which  were  used 
for  the  purpose  of  making  oil  and  fulling  cloth,  went  to  decay, 
after  the  year  1776 :  That  the  dam  then  erected  did  not  swell 
the  water  to  the  tail-race  of  the  grist-mill,  now  the  property  of 
the  plaintiff,  which  was  erected  twenty  years  before  the  Revolu- 
tion, and  *that  nothing  had  been  built  on  the  site  of  the  r*99rv-i 
old  fulling-mill  until  the  defendant  erected  his  present  L  ^  J 
oil-mill.  Much  evidence  was  likewise  given  on  the  part  of  the 
defendant,  as  to  the  extent  of  the  back  water,  and  other  matters, 
a  detail  of  which  is  not  now  material. 

At  the  close  of  the  trial  his  Honour,  the  Chief  Justice,  deliv- 
ered to  the  jury  the  following  : — 

Charge. — There  is  a  preliminary  objection  to  the  form  of  the 
action.  It  is  said,  that  these  plaintiffs  had  separated  their  in- 
terests, and  that  they  could  not  recover  jointly.  I  think  differ- 
ently. At  law,  they  were  still  tenants  in  common,  and  may 
therefore  join  in  a  common  law  action,  for  an  injury  to  their 
possession,  and  divide  the  damages,  if  they  obtain  any,  according 
to  their  equitable  rights. 

There  is,  certainly,  evidence  that  the  defendants  have  flooded 
the  plaintiff's  laud ;  but  the  defendant  says  he  has  a  right  to  do 
so,  provided  he  does  not  injure  the  mill ;  and  for  this  he  refers 
to  a  reservation  in  a  deed  under  the  parties  to  which,  both  sides 
respectively  claim.  The  plaintiffs  say,  the  defendant  has  lost 
the  benefit  of  the  privilege,  by  not  having  exercised  it  from  the 
2d  of  April,  1793,  till  August,  1825,  thirty-two  years.  There 
has  been  no  use  of  the  water  adverse  to  this  privilege,  and  the 
question,  therefore,  is  not  one  in  analogy  to  the  statute  of  limi- 
tations. The  inquiry  is,  whether  the  lapse  of  time  is  sufficient 
tQ  presume  a  release  ?  I  think  it  is  too  short.  It  has  been  left 
to  a  jury  to  presume  an  ouster  after  thirty-eight  years  against  a 
tenant  in  common,  and  this  is  the  very  shortest  period  ever 
known.     I  am  unwilling  to  narrow  it. 

This  is  not  like  a  case  where  a  man  backs  the  water  to  his  own 
line ;  in  which  case  he  will  not  be  auswerable  for  the  increased 
rise  of  the  water  in  freshets.  In  that  case  the  law  gives  him  a 
right  to  do  so,  without  conditions,  or  restrictions.     But  that  is 

243 


220  SUPREME  COURT  {Philadelphia, 

[Butz  V.  Ihrie.] 

very  different  from  a  case  where  a  privilege  is  granted  on  specific 
conditions  and  restriction^. 

The  inquiry  tlien  is,  whether  the  defendant  has  flooded  the 
land  of  the  plaintiffs,  so  as  to  injure  the  mill,  in  any  way  at  all, 
as  it  then  stood,  whether  in  high  or  low  water?  If  the  mill  has 
received  any  injury,  the  plaintiffs  are  entitled  to  damages ;  if  it 
has  not  been  injured,  they  are  entitled  to  none.  The  matter, 
therefore,  comes  to  a  question  of  fact.  As  you  have  not  only 
heanl  the  evidence,  but  viewed  the  premises,  you  are  quite  as 
competent  to  pass  on  it  as  I  can  be.  The  cause,  therefore,  is 
submitted  to  you,  under  this  direction,  for  your  consideration  of 
the  matter  of  fact  exclusively. 

The  jury  found  a  verdict  for  the  defendant,  and  the  plaintiffs* 
counsel  moved  for  a  new  trial,  for  which  they  filed  several  rea- 
sons. The  motion  having  been  overruled,  an  appeal  was  entered 
to  the  court  in  bank.  The  points  chiefly  discussed  in  the  argu- 
ment, are  sufficiently  stated  in  the  opinion  of  the  court. 

Soott  and  Binney^  for  the  plaintiffs,  cited,  2  Saund.  175,  note; 
r*99n  *1  Vern.  32, 196  ;  2  Pothier,  128  ;  2  Brown's  Rep.  29  ; 
L  ^"^^J  Strickler  v.  Todd,  10  Serg.  &  Rawle,  69 ;  Kingston  v. 
Lesley,  10  Serg.  &  Rawle,  383 ;  Norris's  Peake,  499,  note ; 
Jackson  v.  Hudson,  3  Johns.  Rep.  387 ;  Com.  Dig.  Fait.  E. 
290;  Cro.  Jac.  121;  Blaine's  Lessee  ?;,  Chambers,  1  Serg.  & 
Rawle,  169  ;  Angell  on  Adv.  Enjoym.  24,  63,  68 ;  Angell  on 
Water  Courses,  45 ;  1  Phil.  Evid.  124 ;  Winchelsea  Causes,  4 
Burr.  1962;  12  Mass.  Rep.  157. 

J.  M.  Porter,  and  Tilghman,  contra,  referred  to  Angell  on 
Adv.  Enjoym.  55,  64 ;  2  Com.  Rep.  584 ;  1  Com.  Rep.  382 ;  7 
Wheat.  59 ;  1  Pick.  Rep.  466 ;  14  Mass.  Rep.  55 ;  9  Serg.  & 
Rawle,  26;  13  Mass.  Rep.  614;  4Dall.244;  1  Journ.  of  Jurisp. 
256  ;  3  Salk.  278. 

The  opinion  of  the  court  was  delivered  by 

Tod,  J. — It  is  the  unanimous  opinion  of  the  court  to  affirm 
the  judgment.  The  question  chiefly  argued  by  the  counsel  has 
been,  whether  the  case  is  affected  by  the  act  of  limitations,  or 
by  analogy  to  it  ? 

The  plaintiff  alleges  an  injury  by  a  dam  erected  by  the  de- 
fendant in  a  stream,  called  the  Bushkiln,  throwing  the  water 
upon  his,  the  plaintiff's  land,  and  injuring  his  grist-mill.  The 
defendant  insisted  that  when  the  suit  was  brought,  no  water  at 
all  had  been  raised  upon  the  plaintiff's  property  by  means  of 
the  dam ;  he  admits  that,  after  the  suit  was  brought,  the  water 
had  been  thrown  by  the  dam  upon  the  plaintiff's  land,  but  not 
244 


iforc^  27, 1829.]    OF  PENNSYLVANIA.  221 

[Butz  V.  Ihrie.] 

SO  as  to  hurt  the  plaintiff's  mill,  and  that  the  dam  was  lawfully- 
erected  by  virtue  of  a  reservation  in  a  deed,  dated  12th  of  April, 
1793,  from  Jacob  Koechliue  and  Peter  Ihrie,  to  James  Ralston 
and  John  Mulhallon,  in  these  words  :  "  excepting  and  reserving 
therefrom,  to  the  said  Jacob  Koechline  and  Peter  Ihrie,  their 
heirs  or  assigns,  tenants  and  occupiers,  possessing  and  holding 
a  certain  lot  or  piece  of  ground,  situate  on  Bushkiln  creek,  afore- 
said, below  and  adjoining  the  hereby  granted  premises,  com- 
monly known  by  the  name  of '  the  fulling-mill  tract,'  the  full, 
free,  and  absolute  right  and  privilege  to  raise,  swell,  and  dam 
the  water  in  the  said  creek,  from  a  dam  intended  to  be  built  on 
the  said  fulling-mill  tract,  upon  the  premises  hereby  granted ; 
provided  the  same  is  not  raised  or  swelled  so  high  as  to  injure 
and  damage  the  grist-mill  hereby  conveyed." 

The  grist-mill  mentioned  in  the  reservation  is  the  plaintiff's 
mill  in  question.  The  reservation  is  admitted  to  be  valid,  unless 
affected  by  lapse  of  time.  But  the  deed  being  dated  in  1793, 
and  the  dam  complained  of  not  being  erected  until  1825,  and 
there  thus  being  a  space  of  thirty-two  years  between  the  reser- 
vation of  the  right,  and  the  building  of  the  danrin  alleged  pur- 
suance of  that  right,  the  argument  l>y  the  plaintiff's  counsel  is, 
that  the  privilege  reserved  having  been  abandoned  or  neglected 
for  twenty-one  years  *and  more,  is  thereby  lost ;  and  1-^0.99-1 
that  a  release  or  some  other  extinguishment,  ought  to  ■-  "^  -* 
be  presumed,  from  mere  length  of  time,  by  the  act  of  limitations, 
or  the  legal  analogy  to  it.  They  argue,  that  here  are  eleven 
years  over  and  above  the  time  necessary  either  to  create  and 
confirm  by  possession  an  incorporeal  right,  or  to  forfeit  and  ex- 
tinguish any  privilege,  such  as  that  claimed  by  the  defendant  in 
this  case,  by  non-user  and  laches. 

We  are  all  of  opinion,  that  the  lapse  of  time  has  not  been  such 
as  to  create  any  bar  or  forfeiture,  and  that  under  the  circum- 
stances of  this  case  the  privilege  reserved  in  the  deed  of  1793, 
was  in  full  force  in  1825,  unaffected  by  any  prescription.  The 
omission  to  erect  the  dam  can  scarcely  in  this  case  be  called  a 
non-user.  Certainly  it  cannot  be  called  laches.  It  would  have 
been  otherwise,  had  the  deed  shown  that  an  immediate  exercise 
of  the  privilege  reserved  was  contemplated  by  the  parties. 
Here  the  right  of  building  the  dam  appears  to  be  expressly  re- 
served, even  to  the  heirs  and  assigns  of  the  grantors  in  the  deed. 
We  concur  in  the  opinion  of  the  Chief  Justice  expressed  to  the 
jury,  that  the  law  of  limitations  may  be  applicable  to  a  case  of 
this  kind ;  but  that  the  time  cannot  begin  to  run  against  such  a 
privilege  by  reservation,  until  some  default,  negligence,  or  ac- 
quiescence is  shown,  or  may  be  fairly  presumed  in  the  owner. 
The  time  of  limitation  may  begin  to  run  as  soon  as  the  laches 

245 


222  SUPREME  COURT  IPhilculelphia, 

[Butz  V.  Ihrie.] 

exist,  but  not  Ijefore — no  more  than  on  a  bond  or  promise  to 
save  harmless,  will  the  limitation  begin  to  run,  before  the 
damage  happens :  it  not  being  the  date  of  the  contract  or 
grant  that  is  material  in  these  cases,  but  the  time  of  perform- 
ance. 

The  plaintiff's  counsel  have  presented  one  very  important 
question,  which,  I  apprehend,  cannot  be  directly  decided,  be- 
cause it  does  not  appear  to  have  been  presented  to  the  court 
below,  nor  mentioned.  It  is,  whether  the  dam  in  question,  not 
being  an  ordinary  mill-dam,  but  erected  for  the  mere  purpose  of 
dividiug  the  water  between  the  mills  on  the  different  sides  of  the 
island,  thus  causing  a  perpetual  swell  of  water  on  the  plaintiff's 
land,  can  be  authorized  by  the  reservation  in  the  deed  of  1793? 
It  seems  to  be  a  question  which  depends  on  sundry  matters,  such 
as  the  nature  of  the  stream,  usage,  necessity.  If,  in  point  of 
fact,  the  dividing  dam  is  necessary  to  the  full,  just,  and  proper 
enjoyment  of  the  water  power,  then,  in  my  opinion,  the  erection 
of  such  dam  is  justifiable  under  the  reservation. 

We  all  agree  with  the  plaintiff's  counsel  most  entirely,  that, 
according  to  the  just  intent  and  meaning  of  the  proviso  in  the 
reservation,  an  injury  to  the  plaintiff's  mill-race  is  an  injury  to 
his  mill.  There  can  be  no  doubt  upon  the  matter.  Any  im- 
pediment in  the  stream  caused  by  the  defendant's  dam,  by  which 
the  plaintiff's  mill  is  stopped  from  grinding  in  any  state  of  the 
water,  or  made  to  grind  slower,  or  worse  than  it  otherwise  would, 
is  an  injury  for  which  the  plaintiff  would  be  entitled  to  damages 
r^ooq-|  in  this  case,  notwithstanding  *the  reservation  is  yet  in 
L  -I  full  force.  If  the  damage  was  to  the  land  only,  and 
not  to  the  mill,  the  plaintiff  was  not  entitled  to  recover.  And, 
in  substance,  the  Chief  Justice  so  charged  the  jury.  ^ 

The  mere  number  of  dams  we  do  not  think  to  be  material ; 
though  the  wOrds  of  the  deed  are  "  a  dam,"  &c.,  yet  the  sub- 
stance of  the  reservation  is  of  a  privilege  to  overflow  the  land, 
not  injuring  the  mill.  Whether  this  is  done  by  one  dam,  or 
more  than  one,  erected  on  the  defendant's  land,  appears  unes- 
sential. This  applies  not  to  the  dividing  dam.  Whether  that 
is  illegal  or  not,  seems  to  depend  on  other  matters  already  men- 
tioned. 

Judgment  affirmed. 

Cited  by  Counsel,  3  E.  90;  5  Wh.  594;  7  W.  &  S.  155;  4  Barr,  484;  2  J. 
260;  11  H.  108 ;  8  C.  405 ;  9  C.  171 ;  3  S.  235;  19  S.  218  ;  8  N.  228. 
Cited  by  the  Court,  3  R.  82 ;  2  Wh.  130 ;  4  W.  231 ;  8  W.  439 ;  1  N.  209. 


246 


ifarcA  27, 1829.]     OF  PENNSYLVANIA.  223 


[PnHiADELPHiA,  Mabch  27,  1829.] 

Arnold  and  Another,  against  Gorr  and  Another. 

A  difference  between  the  sheriff's  deed,  and  the  levy,  venditioni  exponas  and 
conditions  of  sale,  in  stating  the  number  of  acres  contained  in  a  tract  of  land, 
is  unimportant. 

Though  the  conditions  of  sale  are  not  essential  to  support  an  ejectment  by 
the  sheriff's  vendee,  yet  being  part  of  the  res  gestae,  they  are  admissible  in  evi- 
dence. 

An  ancient  deed,  which  has  not  accompanied  the  possession,  is  not  admissible 
in  evidence  without  proof  of  its  execution. 

The  record  of  a  judgment,  sheriff's  sale  thereon,  sheriff's  deed,  and  mesne 
conveyances  to  the  party  offering  them,  are  not  evidence,  where  no  interest  in 
the  land  sold  by  the  sheriff,  is  shown  in  the  defendant  in  the  judgment. 

A  defendant  whose  property  has  been  sold  by  the  sheriff,  cannot  defeat  the 

Eurchaser  in  obtaining  possession,  by  connecting  liimself  with  one  who  may 
ave  a  good  title. 

A  judgment  was  confessed  before  a  justice  of  the  peace  on  the  11th  of  August, 
1823,  for  a  sum  exceeding  one  hundred  dollars.  A  transcript  of  this  judgment 
was  filed  in  the  Court  of  Common  Pleas,  on  the  20th  of  the  same  month.  The 
plaintiff  afterwards  took  out  an  execution  from  the  justice,  which  was  returned 
— "  No  goods  could  be  found  to  satisfy  the  demand ; "  a  certificate  to  which  ef- 
fect was  carried  to  the  prothonotary's  office,  together  with  a  prcecipe  for  a  fieri 
facias,  on  the  7th  of  April,  1824.  The  prothonotary,  instead  of  filing  this  cer- 
tificate with  the  transcript  already  filed,  filed  and  docketed  it  as  a  new  transcript, 
and  marked  the  execution  as  having  issued  upon  it.  Held,  that  all  these  pro- 
ceedings must  be  taken  together,  as  constituting  one  whole,  and  that,  therefore, 
they  were  regular.  But  if  they  were  not  so,  they  could  not  be  inquired  into 
collaterally,  the  remedy  being,  if  any  error  actually  existed,  by  motion  to  the 
Common  Pleas,  before  the  sheriff's  deed  is  acknowledged ;  and  it  makes  no 
diflerence  whether  the  purchaser  at  sheriff's  sale  is  the  plaintiff  in  the  execu- 
tion or  a  stranger. 

This  ejectment,  in  which  John  Arnold  and  John  Miller  were 
plaintiffs,  and  Jacob  Gorr  and  Garbutt  Fisher,  defendants,  was 
tried  at  the  Circuit  Court  of  Northampton  county,  on  the  8th  of 
April,  1828,  before  the  Chief  Justice,  under  whose  direction  the 
jury  found  a  verdict  for  the  plaintiffs. 

*The  defendants  moved  for  a  new  trial,  and  in  arrest  r^ooAT 
of  judgment,  and  filed  several  reasons  in  support  of  each  •-  -• 
motion,  both  of  which  were  overruled  by  the  court ;  whereupon 
an  appeal  was  entered. 

In  this  court  the  cause  was  argued  by  Scott  and  Binney,  for 
the  appellents,  who  cited  Yelv.  179,  180;  Lessee  of  Samms  v. 
Alexander,  3  Yeates,  268 ;  Hawk  v.  Stouch,  5  Serg.  &  Rawle, 
161 ;  Bull.  N.  P.  255  ;  1  Phil.  Ev.  404,  405,  406,  (note)  ;  Jack- 
son V.  Blanshan,  3  Johns.  Rep.  295 ;  Lessee  of  Thomas  v.  Hor- 
locker,  1  Dall.  14 ;  1  Inst.  6,  b ;  Healy  v.  Moul,  5  Serg.  &  Rawle, 

247 


224  SUPREME  COURT  [PhUculelphia, 

[Arnold  and  another  v.  Gorr  and  another.] 

184;  M'Gennis  v.  Allison,  10  Serg.  &  Rawle,  198;  Smith  v. 
Painter,  5  Serg.  &  Rawle,  225 ;  Freedly  v.  Sheetz,  9  Serg.  & 
Rawle,  156 ;  Simpson  v.  Jack,  13  Serg.  &  Rawle,  278 ;  Lenox 
V.  M'Oall,  3  Serg.  &  Rawle,  102  ;  4  Mass.  Rep.  641 ;  Powers  v. 
The  People,  4  Johns,  Rep.  292 ;  All^erty  v.  Dawson,  1  Binn. 
105  ;  Thomas  v.  Gulp,  4  Serg.  &  Rawle,  271 ;  2  Madd.  Ch.  189, 
325 ;  Arab.  676  ;  2  Atk.  175.     And  by 

/.  M.  Porter  and  TUghman,  for  the  appellees,  who  cited, 
Fisher  v.  Larrick,  3  Serg.  &  Rawle,  319;  Lessee  of  Peters  v. 
Condron,  2  Serg.  &  Rawle,  82 ;  Brannan  v.  Kelley,  8  Serg.  & 
Rawle,  479 ;  Lessee  of  Culbertson  v.  Martin,  2  Yeates,  443 ; 
Stable  V.  Spohn,  8  Serg.  &  Rawle,  317;  Jackson  v.  Bush,  10 
Johns.  Rep.  223;  Jackson  v.  Graham,  3  Gaines,  188;  Eisen- 
hart  V.  Slaymaker,  14  Serg.  &  Rawle,  153. 

The  questions  discussed  on  the  argument,  and  the  substance 
of  the  case  as  it  appeared  in  evidence  on  the  trial,  will  be  found 
in  the  opinion  of  the  court,  which  was  delivered  by 

Smith,  J. — In  this  case  the  plaintiffs,  on  the  trial,  prove^l 
title  in  Jacob  Gorr,  by  showing  a  precisely  descriptive  warrant 
to  him,  dated  the  21st  of  October,  1818,  the  payment  of  the 
purchase-money,  and  a  survey  made  in  pursuance  of  the  said 
warrant,  on  the  1st  of  October,  1823,  which  was  accepted  in 
the  surveyor  general's  office  on  the  26th  of  February,  1824. 

To  show  that  this  title  had  been  transferred  to  them,  they 
proved  that  there  had  been  filed,  in  the  prothonotary's  office  of 
Northampton  county,  a  transcript  of  a  judgment  obtained  before 
a  justice  of  the  peace,  at  the  suit  of  John  Arnold,  John  Miller, 
and  William  Kester,  against  the  said  Jacob  Gorr,  for  one  hun- 
dred and  ninety-six  dollars  and  two  cents,  and  costs ;  a  fieri 
facias  from  the  Gourt  of  Gommon  Pleas  of  the  said  county  to 
August  Term,  1825;  a  levy,  inquisition,  and  condemnation;  a 
venditioni  exponas  to  November  Term,  1825;  a  sale  by  the 
sheriff,  and  a  sheriff's  deed  duly  acknowledged  to  John  Arnold 
and  John  Miller,  two  of  the  plaintiffs  in  the  judgment,  for  the 
premises  in  dispute.  The  levy,  the  venditioni  exponas,  and  the 
conditions  of  sale,  describe  the  premises  by  the  same  adjoiners 
mentioned  in  the  sheriff's  deed,  but  state  the  contents  to  be  one 
hundred  and  ninety  acres ;  but  the  deed  states  the  contents  to 
r*225l  '^  ^"^  hundred  and  thirty  acres.  This  has  *evidently 
*-  J  been  a  mere  clerical  error  in  drawing  the  deed.  It  is 
not  important,  as  the  contents  are  mere  matter  of  description. 

The  plaintiffs  then  offered  in  evidence  the  conditions  of  sale, 
to  which  the  defendants  objected  ;  the  court,  however,  admitted 
them,  and  noted  the  objection  ;  and  this  forms  one  of  the  reasons 
248 


ITarcA  27, 1829.]     OF  PENNSYLVANIA.  225 

[Arnold  and  another  v.  Gorr  and  another.] 

assigned  for  a  new  trial.  I  do  not  see  that  the  coud  itions  of  sale 
were  very  essential  to  the  support  of  the  plaintiff's  claim,  but 
they  were  part  of  the  res  gestce,  and  certainly  not  irrelevant.  I 
see  no  error  in  their  admission. 

The  ejectment  was  only  served  on  Jacob  Gorr.  But  on  motion 
to  the  Court  of  Common  Pleas, "  Garbutt  Fisher  claiming  to  be 
landlord  of  the  defendant,  (Jacob  Gorr)  was  admitted,  and  made 
co-defendant."  And  on  the  trial  he  attempted  to  defeat  the 
plaintitfs'  claim  by  showing  a  loosely  descriptive  application,  No. 
1806,  dated  the  21st  of  August,  1766,  in  the  name  of  John  Key- 
ser;  a  survey  under  it,  on  the  1st  of  October,  1823,  five  years 
after  the  date  of  Jacob  Gorr's  warrant ;  and  a  patent,  dated  the 
20th  of  December,  1824,  to  Garbutt  Fisher,  which  recited  the 
above-mentioned  application  and  survey,  and  certain  intermedi- 
ate conveyances  from  John  Keyser  down  to  Garbutt  Fisher. 

He  also  offered  the  following  matters  in  evidence,  which  the 
Chief  Justice  rejected,  and  noted. 

A  deed  poll  from  John  Keyser  to  Joseph  Galloway,  dated  the 
15th  of  August,  1766,  but  made  no  proof  of  its  execution ;  and 
a  deed  poll,  indorsed  thereon,  from  Joseph  Galloway  to  Robert 
Levers,  dated  the  8th  day  of  June,  1776.  These  deeds  were  not 
proved,  or  acknowledged  ;  but  to  the  latter  there  was  a  subscrib- 
ing witness. 

The  record  of  a  judgment  in  the  Court  of  Common  Pleas  of 
Northampton  county  of  September  Term,  1788,  No.  97,  at  the 
suit  of  William  Fisher,  assignee  of  Thomas  Ashton  v.  Mary 
Levers,  and  George  Levers,  administratrix  and  administrator  of 
Robert  Levers,  a  sheriff's  sale  under  it,  and  a  sheriff's  deed  to 
Thomas  Fisher,  from  whom  they  proposed  to  deduce  title  to 
Garbutt  Fisher. 

The  record  of  an  ejectment  in  the  Circuit  Court  of  the  United 
States,  brought  to  April  Sessions,  1825,  for  the  land  in  dispute 
by  the  lessee  of  Garbutt  Fisher  v.  Jacob  Gorr,  in  which  the 
plaintiff  obtained  judgment  on  the  27th  of  May,  1825,  and 
evicted  the  defendant  under  a  habere  facias  possessionem. 

And  a  lease,  dated  the  29th  of  September,  1825,  at  the  time 
of  the  service  of  the  habere  facias,  from  Garbutt  Fisher  to 
Jacob  Gorr,  for  the  lands  in  dispute. 

The  rejection  of  the  above  stated  evidence  is  urged  in  support 
of  the  motion  for  a  new  trial,  as  well  as  alleged  misdirection  in 
the  court,  who  charged  the  jury,  that  the  judgment  given  in 
evidence  was  sufficient  to  support  the  executions,  and  that  the 
defendant  in  an  execution,  whose  property  has  been  sold  by  the 
sheriff,  shall  not  defeat  the  purchaser  in  obtaining  possession,  by 
fastening  himself  to  one  who  may  have  a  good  title. 

249 


226  SUPREME  COURT  [PkUaddphia, 

[Arnold  and  another  «.  Gorr  and  another.] 

r*99fJl  *Tlie  two  deeds  poll  were  properly  rejected.  They 
L  -•  had  not  accompanied  the  possession,  and  therefore  do 
not  come  within  the  rule,  familiar  to  all  which  permits  ancient 
deeds,  which  have  come  along  with,  and  accompanied  the  posses- 
sion, to  be  given  in  evidence  without  proof  of  their  execution. 
See  Glib.  Law  of  Evid.  94,  95. 

The  record  of  the  judgment  of  William  Fisher,  Assignee,  &e., 
V.  The  Administrators  of  Robert  Levers,  the  sheriff's  sale, 
sheriff's  deed  to  Thomas  Fisher,  and  mesne  conveyances  under 
this  judgment  to  Garbutt  Fisher,  were  properly  rejected,  as 
no  interest  in  the  lands  was  shown  to  have  existed  in  Robert 
Levers. 

The  record  of  the  action  of  ejectment  in  the  Circuit  Court  of 
the  United  States,  and  the  lease,  were  properly  rejected,  because 
the  defendant  in  an  execution,  shall  not  be  permitted  to  defeat 
the  purchaser  at  sheriff's  sale  by  such  a  proceeding.  It  would 
be  opening  the  door  to  fraud  and  collusion.  The  purchaser  has 
whatever  estate  the  debtor  had  at  the  time  of  judgment  rendered, 
and  he  must  recover  the  possession  where,  as  in  this  case,  the 
defendant  continues  in  possession,  or  the  object  of  the  law,  the 
satisfaction  of  the  debt,  would  be  defeated.  Here,  too,  the 
judgment  in  the  ejectment  was  subsequent  to  the  judgment  under 
which  the  property  was  sold,  and  even  to  the  issuing  of  the  ^m 
facias^'  and  the  lease  was  subsequent  to  the  levy  and  con- 
demnation. 

But  one  other  matter  remains  to  be  considered.  Was  the 
judgment  sufficient  to  support  the  executions  and  sale  ?  It  is 
evident,  that  the  judgment  before  the  justice  was  rendered  on  the 
11th  of  August,  1823,  by  the  defendant  voluntarily  appearing 
and  confessing  judgment  for  an  amount  exceeding  one  hundred 
dollars.  A  transcript  of  this  judgment  was  filed  in  the  Court  of 
Common  Pleas  on  the  20th  day  of  the  same  month.  The  plain- 
tiffs subsequently  took  out  an  execution  before  the  justice,  which 
was  returned,  "  No  goods  could  be  found  to  satisfy  the  demand ;" 
a  certificate  to  which  effect  they  carried  to  the  prothonotary's 
office,  together  with  a  precipe  for  a  fieri  facias  on  the  7th  of 
April,  1824.  The  prothonotary,  instead  of  filing  this  certifi- 
cate, with  the  transcript  already  filed,  filed  and  docketed  it  as 
a  new  transcript,  and  marked  the  executions  as  having  issued 
upon  it. 

We  sit  here  to  do  substantial  justice,  and  not  to  catch  parties 
in  nets  of  form.  We  must  make  great  allowances  and  large 
intendments  in  support  of  our  judicial  proceedings,  which  are 
generally  not  very  formally  kept ;  and  I  would  therefore  be  for 
connecting  all  these  proceedings  together,  making  a  whole  of  all 
the  parts.  If  so,  they  appear  perfectly  regular. 
250 


3/arcA  27, 1829.]     OF   PENNSYLVANIA.  226 

[Arnold  and  another  v.  Gorr  and  another.] 

But  these  proceedings  cauuot  be  overhauled  collaterally.  The 
defendant  in  the  execution  could  have  taken  advantage  of  any 
error  that  actually  existed,  by  motion  to  the  Court  of  Common 
Pleas,  before  the  sheriff's  deed  was  acknowledged.  The  filing  of 
the  transcript  made  the  judgment  a  judgment  of  the  Court  of 
Common  Pleas  for  all  purposes  of  proceeding  against  real  estate. 
That  court  *is  one  of  general  jurisdiction  ;  and,  there-  r*997-i 
fore,  the  rule  as  to  inferior  tribunals  and  limited  juris-  *-  -■ 
dictions  does  not  apply  to  it  or  to  its  proceedings. 

I  can  see  no  difference,  or  reason  for  a  difference,  between 
the  case  of  the  plaintiff  in  the  execution  becoming  the  purchaser, 
and  that  of  a  stranger.  The  act  of  assembly  is  general  in  its 
provisions  in  protecting  purchasers,  and  I  see  no  reason  for  re- 
straining it  to  strangers  only.  The  dicta  of  Judge  Yeates,  in 
Samm's  Lessee  v.  Alexander,  3  Yeates,  268 ;  and  in  Hiester's 
Lessee  v.  Fortner,  2  Binn.  40,  founded  on  Goodyer  v.  Junce,  in 
Yelverton,  179,  much  as  I  am  disposed  to  respect  his  opinions 
generally,  were  not  given  on  any  points  that  arose  in  those 
causes,  and  without  taking  into  consideration  our  act  of  assem- 
bly, which,  I  think,  is  decisive.  On  the  whole,  being  satisfied 
with  the  verdict,  and  seeing  no  error,  either  in  the  decision  as 
to  the  evidence,  or  in  the  charge  of  the  court,  I  am  for  letting 
the  verdict  stand.  The  judgment  of  the  Circuit  Court  is  there- 
fore affirmed. 

.Judgment  affirmed. 

Cited  by  Counsel,  2  Penn.  K.  89 ;  4  Wh.  38 ;  2  W.  237 ;  4  W.  273 ;  5  W.  273  ; 
6  W.  294;  7  W.  23,  88;  8  W.  423;  2  W.  &  S.  316;  1  Barr,  150;  2  Barr,  76, 
169,  250 ;  5  Barr,  520 ;  7  H.  83,  127 ;  9  H.  439  ;  12  H.  345 ;  1  C.  247  ;  6  C.  66; 
2  G.  73 ;  3  G.  260 ;  14  S.  438 ;  2  W.  N.  C.  710. 

Cited  by  the  Court,  2  W.  148 ;  6  W.  401 ;  2  W.  &  S.  276. 

Commented  on,  6  H.  84. 

An  ancient  deed  accompanying  the  possession  will  be  admitted  in  evidence 
without  proof  of  execution,  but  the  possession  must  have  continued  thirty 
years :  Walker  v.  Walker,  17  S.  185 ;  or,  if  the  land  is  wild,  payment  of  taxes 
for  thirty  years  is  sufficient:  Williams  v.  Hillegas,  5  Barr,  492.  The  case  of 
M'Gennis  v.  Allison,  10  S.  &  K.  197,  would  seem  to  be  overruled. 


261 


227  SUPREME  COURT  [Philaddpkia, 


[PHUADELPHiiL,  March  27, 1829.] 

Metzgar,  for  the  use  of  Uhler  and  Another,  against 

Metz^ar. 

IN  ERROR. 

The  a&signee  of  the  assignee  of  a  bond,  takes  it  subject  to  all  the  equities 
existing  at  the  time  of  the  assignment,  l)etween  the  obligor  and  tlie  first 
assignee,  notwithstanding  such  equities  may  have  arisen  before  the  bond  came 
into  the  hands  of  the  first  assignee. 

A  judgment  may  be  set  oflf  before  a  jury,  against  a  demand  not  ascertained 
by  judgment. 

This  was  a  writ  of  error  to  the  Court  of  Common  Pleas  of 
No7'thampton  county,  which  was  returned  accompanied  by  several 
bills  of  exceptions  to  the  opinion  of  a  majority  of  the  court  below, 
both  in  the  admission  of  evidence,  and  in  their  instructions  to 
the  jury. 

The  action  was  brought  in  the  name  of  Christian  Metzgar, 
assignee  of  the  executors  of  Andrew  Metzgar,  deceased,  for  the 
use  of  Valentine  Uhler  and  Henry  Uhler,  against  Philip  Metz- 
gar, upon  a  bond  given  by  Philip  Metzgar  to  Andrew  Metzgar, 
dated  the  26th  of  May,  1810,  in  the  penalty  of  one  hundred 
pounds,  conditioned  for  the  payment  of  fifty  pounds  on  the  27th 
of  May,  1825.  This  bond  was,  on  the  8th  of  December,  1815, 
assigned  by  the  executors  of  Andrew  Metzgar,  under  seal  and 
in  the  presence  of  two  witnesses  to  Christian  Metzgar,  who,  by 
r*228l  ^^  informal  assignment  *indorsed  on  the  bond,  trans- 
L  -J  ferred  it  on  the  4th  of  January,  1816,  to  Valentine 
Uhler  and  Henry  Uhler. 

The  defendant  pleaded  payment,  with  leave  to  give  the  spe- 
cial matters  in  evidence ;  to  which  he  afterwards  added  the  plea 
of  set-oif. 

On  the  trial  the  defendant,  under  notice  previously  given, 
offered  in  evidence  the  record  of  a  judgment  for  ninety-nine  dol- 
lars forty-three  cents,  confessed  before  Frederick  Heany,  Esq., 
a  justice  of  the  peace,  by  Christian  Metzgar,  in  favour  of  Philip 
Metzgar,  on  the  26th  of  August,  1809.  To  the  admission  of 
this  evidence  the  counsel  for  the  plaintiffs  objected  ;  upon  which 
the  President  of  the  court  requested  the  counsel  for  the  defend- 
ant, to  prove  any  circumstance  which  had  a  tendency  to  create 
a  presumption  of  fraud  in  the  assignment  of  the  bond  in  ques- 
tion by  Christian  Metzgar  to  Valentine  and  Henry  Uhler, 
This  the  counsel  for  the  defendant  declined  doing.  The  Presi- 
252 


infarct  27, 1829.]    OF  PENNSYLVANIA.  228 

[Metzgar,  for  the  use  of  Uliler  and  another,  v.  Metzgar.] 

dent  then  delivered  his  opinion  against  the  admission  of  the  evi- 
dence ;  but  the  two  associates  overruled  him,  and  permitted  it 
to  be  given ;  upon  which  an  exception  was  taken  by  the  plain- 
tiff's counsel  to  their  opinion. 

The  defendant's  counsel,  in  further  pursuance  of  the  notice 
given,  offered  in  evidence  a  single  bill  given  by  Christian  Metz- 
gar to  Philip  Metzgar,  for  thirty-three  dollars  and  forty  cents, 
dated  the  26th  of  August,  1809,  and  payable  on  the  29th  of  the 
same  month,  on  which  judgment  was  confessed  before  Daniel 
Brown,  Esq.,  a  justice  of  the  peace.  They  also  offered  in  evi- 
dence another  single  bill  given  by  Christian  to  Philip  Metzgar, 
for  twenty-eight  pounds,  six  shillings,  and  one  penny,  dated  the 
8th  of  May,  1813,  and  payable  on  the  27th  of  May,  181-4.  This 
evidence  being  objected  to  by  the  plaintiffs'  counsel,  the  Presi- 
dent gave  his  opinion  in  favour  of  maintaining  the  objection ; 
but  the  associates  again  overruled  him,  and  admitted  the  evi- 
dence ;  which  formed  the  basis  of  three  additional  bills  of  ex- 
ceptions, tendered  by  the  counsel  for  the  plaintiffs. 
.  After  the  President  had  charged  the  jury  upon  the  facts,  he 
proceeded  to  give  his  opinion  upon  eight  legal  propositions  sub- 
mitted by  the  counsel  for  the  plaintiffs,  all  of  them  involving 
the  same  principles  upon  which  the  questions  of  evidence  had 
been  decided  ;  viz.,  whether  or  not  the  matters  given  in  evidence, 
were  a  good  defence  against  the  plaintiffs'  demand.  Upon  all 
these  points  the  opinion  of  the  President  was  in  favour  of  the 
plaintiffs,  but  the  associates  differed  from  him  on  every  point, 
and  delivered  their  opinions  to  the  jury,  in  accordance  with 
which  they  found  a  verdict. 

The  counsel  for  the  plaintiffs  excepted  also  to  the  charge  of 
the  court. 

Brooke  and  /.  31.  Porter,  for  the  plaintiff  in  error. 

1.  The  first  question  is,  whether  a  judgment  can  be  set  off 
against  a  debt  in  suit  ?  Judgments  are  not  within  the  statutes 
of  set-off.  1  Am.  Dig.  344,  Set-Off,  pi.  2.  Our  defalcation 
act,  (Purd.  Dig.  177,)  allows  a  set-off,  in  cases  where  two  or 
more  dealing  *together,  are  indebted  to  each  other,  r^c^.j^-, 
upon  bonds,  bills,  bargains,  promises,  accounts,  or  the  •-  "  -^ 
like ;  but  the  enumeration  does  not  embrace  judgments.  In 
England,  though  not  within  the  statutes,  judgments  may  be 
set  off  against  each  other,  on  motion,  under  the  equitable  powers 
of  the  court ;  Montague,  6.  This  may  be  done  with  perfect 
justice  to  the  parties ;  but  where  the  plaintiff  is  obliged  to  bring 
suit  for  the  purpose  of  ascertaining  a  disputed  claim,  it  would 
be  manifestly  unjust  to  permit  the  defendant  to  set  off  a  judg- 
ment against  it,  and  thus  throw  the  costs  on  the  plaintiff, 

253 


229  SUPREME  COURT  [Philaddphiaj 

[Metzgar,  for  the  use  of  Uhler  and  another,  v.  Metzgar.] 

2.  Tlie  second  question  is,  whether  or  not  an  obligor  can  set 
off  against  a  second  assignee,  a  debt  due  to  him  by  the  first  as- 
signee, before  the  execution  of  the  bond  ?   The  doctrine  of  set-off 
has  only  been  adjudged  to  affect  the  assignee  of  the  obligee,  on 
the  ground  that  the  obligor  has  become  the  creditor  of  the 
obligee,  on  the  faith  of  the  instrument.     It  has  never  been  held 
that  the  obligor  could  set  off  a  debt  against  the  assignee  of  an 
assignee,  unless,  perhaps,  during  the  time  the  first   assignee 
held  the  bond,  the  obligor,  on  the  faith  of  it,  became  his  credi- 
tor.    The  leading  cases  in  our  own  books,  are  of  the  defalcation 
of  debts  due  by  the  obligee  to  the  obligor.     The  decision  in 
Wheeler  v.  Hughes,  1  Dall.  23,  was,  that  the  assignee  takes  the 
bond  subject  to  all  the  equity  the  obligor  has  against  the  obligee. 
The  principle  the  court  has  gone  upon  is,  to  be  lil)eral  as  to  the 
subject-matter  of  the  set-off,  but  strict  as  to  the  persons  l^etween 
whom  it  is  to  take  place ;  and  an  unwillingness  has  latterly  been 
shown  to  extend  the  doctrine  further  than  it  has  already  gone. 
It  has  been  truly  said,  that  a  set-off  against  an  assignee  does 
not  rest  on  equity  or  good  policy.    Where  the  debt  has  been  in- 
curred by  the  first  assignee,  not  only  before  the  bond  came  into 
his  hands,  but  even  before  its  execution,  no  injustice  can  be  done 
to  the  obligor  by  refusing  to  let  him  set  it  off  after  the  assign- 
ment, because  the  inception  of  the  debt  had  no  reference  to  the 
bond ;  but  to  permit  such  a  set-off,  would  be  highly  inequitable 
to  the  innocent  assignee,  who  has  paid  a  valuable  consideration 
for  the  bond,  and  had  no  notice  of  any  pre-existing  debts  between 
the  first  assignee  and  the  obligor.     Davis  v.  Barr,  9  Serg.  & 
Rawle,  141 ;  Bury  v.  Hartman,  4  Serg.  &  Rawle,  177 ;  The 
Bank  of  Niagara  v.  M'Cracken,  18  Johns.  493 ;  M'Collough  v. 
Houston,  1  Dall.  441 ;  Reeder  v.  Lewis,  9  Serg.  &  Rawle,  195 ; 
Calhoun  v.  Snyder,  6  Binn.  135.     The  act  of  1715,  sect.  3, 
(Purd.  Dig.  97,)  declares  that  the  assignee  of  a  bond  shall 
recover  what  is  due  at  the  time  of  the  assignment,  "  in  like  man- 
ner as  the  person  or  persons  to  whom  the  same  was  made  ])ayable 
might  or  could  have  done."     Valentine  and  Henry  Uhler  were 
therefore  entitled  to  recover  whatever  the  executors  of  Andrew 
Metzgar  could  have  claimed ;  and  as  the  matters  given  in  evi- 
dence could  have  had  no  operation  in  a  suit  brought  by  them 
upon  the  bond,  it  follows,  that  they  cannot  affect  the  instrument 
in  the  hands  of  the  real  plaintiffs  in  this  suit. 

r*9'^m  *Scott,  for  the  defendant  in  error. — The  position  at- 
L  '  -I  tempted  to  be  maintained  on  the  opposide  side — that  a 
judgment  cannot  be  set  off  against  a  demand  unascertained  by 
judgment^ — is  against  sound  reason,  and  even  against  common 
sense.  It  would  be  extraordinary,  indeed,  if  a  man  were  per- 
254 


March  27, 1829.]     OF  PENNSYLVANIA.  230 

[Metzgar,  for  the  use  of  Uliler  and  another,  v.  Metzgar.] 

mitted  to  set  off  an  u.iuiscertained  claim,  aud  yet,  as  soon  as  it 
assumed  a  fixed  and  determinate  character,  be  refused  that 
privilege.  It  is  essential  to  the  goodness  of  a  set-off,  that  it 
should  be  ascertained.  Unliquidated  damages  in  tort,  which 
cannot  be  set  off  before  judgment,  may  be  set  off  after  they  are 
reduced  to  certainty  by  judgment.  There  is  direct  authority  in 
support  of  the  position  contended  for  on  behalf  of  the  defendants 
in  error.     1  Bac.  Ab.  137,  Set-off,  C.  Montague,  10. 

2.  The  rule,  that  a  purchaser  for  a  valuable  consideration 
shall  be  protected  against  secret  trusts,  is  doubtless  well  estab- 
lished, but  it  is  to  be  taken  with  this  qualification,  that  he  has 
not  the  means  of  notice  of  the  existence  of  such  trusts.  If  he 
has  notice,  or  the  means  of  knowledge,  of  w^hich  he  neglects  to 
avail  himself,  he  is  bound.  When,  therefore,  a  man  is  about  to 
receive  an  assignment  of  a  bond,  it  is  his  business  to  call  on  the 
obligor,  and  inquire  what  claims  he  has  upon  the  obligee,  or  any 
of  the  previous  assignees ;  aud,  if  he  neglects  this  easy  precau- 
tion, he  ought  to  be  the  sufferer,  and  not  the  obligor,  who  was  a 
stranger  to  the  transfer.  Mutuality  of  credit  has  never  been 
deemed  an  essential  ingredient  in  the  doctrine  of  set-off,  but 
mutuality  of  remedy  has.  The  settled  rule  is,  that  the  assignee 
of  a  bond  takes  it  subject  to  all  the  equity  existing  against  the 
obligee ;  and  payment  to  the  assignor,  without  notice  of  the 
assignment,  is  good  against  the  assignee.  Notice  puts  an  end  to 
all  privity  between  the  assignor  and  obligor,  and  the  assignee 
becomes  the  owner  of  the  bond,  subject  to  any  existing  equity 
against  the  obligee.  After  notice  of  the  assignment,  a  new  con- 
tract arises  between  the  obligor  and  the  assignee,  who  holds  a 
chose  in  action  no  more  negotiable  than  it  was  in  the  hands  of 
the  obligee.  If  he  transfers  it,  he  does  so  liable  to  all  the  equity 
arising  from  the  contract  between  him  and  the  obligor.  If  this 
be  not  the  case,  the  effect  of  au  assignment  would  be  to  make 
the  instrument  negotial)le.  The  question  is  not,  what  equity 
there  is  between  the  obligor  and  obligee,  but  what  equity  there 
is  in  the  obligor.  The  fact  that  Christian  Metzgar  was  indebted 
to  Philip  Metzgar,  while  the  former  held  the  bond,  amounted  to 
payment  of  it,  and  chancery  would  have  decreed  it  to  be  given 
up.  Ryal  V.  Rowles,  1  Ves.  367 ;  Cjomwell  v.  Arrott,  1  Serg. 
&  Rawlo,  184  ;  1  Ves.  Jr.  249  ;  2  Wash.  233,  254  ;  1  Madd.  Ch. 
126,  185,  186 ;  Cro.  Eliz.  14;  12  Mod.  422;  6  Bac.  Ab.  453. 

The  opinion  of  the  court  was  delivered  by 

GiBSOX,  C.  J. — Our  defalcation  act,  having  been  found  ex- 
tremely beneficial  in  practice,  has  been  construed  more  largely 
than  the  words  would  seem  to  bear.  Even  the  English  statute, 
although  more  narrow  in  its  words  and  construction,  has  not 

255 


230  SUPREME  COURT  [Philadelphia, 

[Metzgar,  for  .the  use  of  Uhler  and  another,  v.  Metzgar.] 
been  held  to  require  that  the  debts  to  be  set  against  eacli  other, 
^*<^o^-\  should  have  *arisen  out  of  the  same  transaction.  The 
L  "^  J  object  is  to  promote  convenience  by  preventing  circuity 
of  action ;  and  that  requires  the  defalcation  of  all  demands 
which  do  not  involve  any  great  degree  of  intricacy  in  the  inquiry. 
Why,  then,  should  not  the  act  embrace  the  debt  of  an  interme- 
diate assignee  ?  The  words  certainly  do  not  restrict  the  remedy 
to  transactions  between  the  original  parties ;  and  there  are  no 
equitable  considerations  to  exempt  the  case  of  a  subsequent  as- 
signee. At  the  time  of  the  assignment,  the  right  of  defalcation 
existed  in  full  force  between  the  obligor  and  the  intermediate 
assignee.  By  what  right,  then,  can  the  latter  put  a  subsequent 
assignee  in  a  more  advantageous  situation  than  he  held  himself. 
In  this  state,  no  assignee,  whether  legal  or  equitable,  can  affect 
to  be  prejudiced  by  want  of  notice ;  it  being  his  duty,  as  estab- 
lished by  many  decisions,  to  sound  the  obligor  before  he  parts 
with  his  money,  as  to  the  amount  actually  due.  With  or  with- 
out actual  notice,  therefore,  he  is  precisely  in  the  situation  of 
the  preceding  obligor,  whose  title  he  bears. 

Nor  is  there  more  force  in  the  objection,  that  a  judgment  can- 
not be  set  off  before  a  jury.  Judgments  are  frequently  set 
against  each  other  by  the  court ;  and  there  is  no  colour  of  argu- 
ment against  defalcating  them  from  unascertained  demands.  A 
judgment  may  be  the  foundation  of  an  action ;  and  there  is  no 
reason  why  it  should  not  be  set  up  as  a  cross  demand,  equally 
with  a  bond  or  recognizance.  It  would  be  unjust  to  subject  to 
the  cost  of  a  trial,  a  defendant  who  has  a  judgment  sufficient 
to  extinguish  the  plaintiff's  demand  altogether.  The  English 
decisions  incontrovertibly  establish  the  right  of  set-off  in  similar 
cases ;  and,  although  not  the  point  decided,  it  was  taken  for 
granted  by  this  court  in  Wain  v.  Hewes,  (5  Serg.  &  Rawle, 
468.)     On  both  grounds,  then,  the  set-off  was  properly  allowed. 

Judgment  affirmed. 

ated  by  Counsel,  Baldwin,  545;  3  Wh.  278;  5  Wh.  30;  3  W.  274;  5  W. 
117;  7  W.  162;  8  W.  262;  9  W.  180;  1  W.  &  S.  419;  8  W.  &  S.  315;  6  H. 
212 ;  3  G.  283 ;  30  S.  388 ;  11  W.  N.  C.  84. 

Questioned  by  the  Court,  but  followed  in,  8  W.  446 ;  10  Barr,  431. 

Commented  on  and  overruled  in,  10  Wright,  265. 


256 


JJfarcA27,1829.]     OF  PENNSYLVANIA.  231 


[PHiij^.DEiiPHiA,  March  27, 1829.] 

Lancaster  against  Dolan. 

EJECTMENT. 

A  mortgagee  is  a  purchaser  within  the  intent  of  the  Stat.  27  Eliz.  ch.  4. 

In  Pennsylvania  a  vohintary  conveyance  is  not  void  against  a  subsequent 
purchaser  by  force  of  the  Stat.  27  Eliz.  ch.  4. 

Under  the  act  of  assembly  of  the  1 8th  of  March,  1775,  a  voluntary  deed, 
duly  recorded,  is  as  valid  against  a  subsequent  purchaser,  as  a  deed  for  a 
valuable  consideration,  provided  it  be  untainted  by  actual  fraud. 

A  feme  covert  is,  in  respect  to  her  separate  estate,  to  be  deemed  a  feme  sole 
only  to  the  extent  of  the  power  clearly  given  by  the  instrument  by  which  the 
estate  is  settled,  and  has  no  right  of  disposition  beyond  it. 

A  power  to  appoint  by  any  writing  in  the  nature  of  a  will  or  other  instru- 
ment, imder  hand  and  seal,  executed  in  the  presence  of  two  credible  witnesses. 
is  well  executed  by  a  mortgage,  though  it  contain  no  reference  to  the  power. 

This  was  an  ejectment,  brought  in  this  court,  for  a  moiety  of 
certain  messuages  and  stores  on  the  east  side  of  Water  Street, 
*between  Market  and  Chestnut  Streets,  in  the  city  of  r^n.oo-i 
Philadelphia.  It  was  tried  at  Nisi  Pi%us  in  February,  L  J 
1828,  when,  by  consent,  a  verdict  was  entered  for  the  plaintiif, 
for  a  moiety  of  the  premises,  subject  to  the  opinion  of  the 
court,  upon  the  whole  evidence ;  the  court  to  be  at  liberty  to 
reduce  the  verdict  to  one-fourth  of  the  premises,  if  they  should 
think  proper. 

The  plaintiff's  title  was  as  follows  : — On  the  16th  of  March, 
1820,  Edward  Rogers  gave  his  bond  to  Israel  Lancaster,  con- 
ditioned for  the  payment  of  three  thousand  dollars,  in  two 
years  from  its  date,  with  interest.  On  the  same  day,  the  said 
Edward  Rogers,  and  Tacy  his  wife,  executed  a  mortgage  upon 
the  premises  in  controversy,  for  the  purpose  of  securing  the 
said  bond.  This  mortgage  recited,  that  Edward  Rogers,  and 
Tacy  his  wife,  were  indebted  to  Lancaster  in  the  sum  of  three 
thousand  dollars ;  was  executed  in  the  presence  of  two  credible 
witnesses ;  was  duly  acknowledged,  by  both  husband  and  wife, 
on  the  day  it  bore  date,  and  was  recorded  on  the  17th  of  April, 
1820.  On  the  22d  of  January,  1821,  the  bond  and  mortgage 
were  assigned,  by  Israel  Lancaster,  to  John  Ross,  Esq.,  who, 
having  obtained  a  judgment  on  the  mortgage,  on  the  23d  of 
March,  1826,  issued  a  levari  facias  to  July  Term,  1826,  under 
which  the  premises  were  sold,  on  the  22d  of  May,  1826,  to 
Israel  Lancaster,  the  plaintiff,  to  whom  the  sheriff  executed  a 
deed  on  the  28th  December,  1826. 

The  defendants,  who  were  the  tenants  of  Rogers  and  wife,  for 
whom  defence  was  taken,  relied  on  the  following  title ;  viz. 

VOL.  I.— 17  257 


232  SUPREME  COURT  [PkUadelphia, 

[Lancaster  v.  Dolan.] 

On  the  24th  of  October,  1831,  Tacy  Prior  (who  afterwards 
became  the  wife  of  Edward  Rogers)  executed  a  deed  to  William 
M'PherHoii,  in  which  she  covenanted  to  pay,  for  the  use  of  her 
mother,  Mary  Berrien,  one-half  of  all  the  clear  rents  she 
might  receive  out  of  certain  premises,  of  which  the  said  Tacy 
was  the  owner  of  a  moiety.  The  consideration  of  this  deed  was 
natural  love  and  affection,  and  one  dollar.  It  was  not  recorded. 
On  the  Gth  of  January,  1815,  a  deed  was  executed,  of  which  the 
following  is  a  coj^y  : — 

"This  indenture,  made  this  sixth  day  of  January,  in  the  year 
of  our  Lord,  one  thousand  eight  hundred  and  fifteen,  between 
Mary  Berrien  and  Tacy  Prior,  daughter  of  the  said  Mary  Ber- 
rien, both  of  the  city  and  county  of  Burlington,  in  the  state  of 
New  Jersey,  single  women,  of  the  first  part,  and  Burgess  Alli- 
son, of  the  same  place,  doctor  of  divinity,  and  Elias  Boudinot, 
of  the  same  place,  doctor  of  laws,  of  the  second  part.  Whereas 
the  said  Tacy  Prior  was  and  is  entitled  to  and  stood  seise<l  of 
and  in  a  considerable  real  estate,  in  the  city  and  county  of 
Philadelphia,  and  state  of  Pennsylvania,  being  lots  of  ground, 
rents,  messuages,  tenements,  and  hereditaments,  as  well  as  other 
real  estate  elsewhere,  one-half  of  which  she  hath  heretofore 
made  over  and  conveyed  to  the  said  Mary  Berrien  for  and  dur- 
ing her  natural  life :  And  whereas  the  said  parties^  of  the  first 
P^noo-i  part,  arc  desirous  of  securing  the  said  estate,  *one-half 
L  -'  for  the  sole  use  and  benefit  of  the  said  Mary  Berrien, 
for  and  during  her  natural  life,  and  the  residue  to  the  said  Tacy 
Prior,  for  the  uses  and  purposes  hereinafter  mentioned  ;  to 
these  ends  they  have  solicited  the  parties  of  the  second  part  to 
accept  of  the  trusts  hereinafter  mentioned,  which  they  have 
reluctantly  done. 

"  Now,  this  indenture  witnesseth,  that  the  said  Mary  Berrien 
and  Tacy  Prior,  for  and  in  consideration  of  the  premises,  and 
also  of  the  sum  of  one  dollar,  lawful  money  of  Pennsylvania,  to 
them  in  hand  paid  by  the  parties  of  the  second  part,  the  receipt 
whereof  they  do  hereby  acknowledge,  and  of  every  part  and 
parcel  thereof  do  hereby  ac(piit,  release,  and  discharge  the  said 
parties,  of  the  second  ])art ;  have  given,  granted,  bargained^ 
sold,  conveyed,  released,  enfeoffed,  and  confirmed,  and,  by  these 
presents,  do  give,  grant,  bargain,  sell,  convey,  release,  enfeoff, 
and  confirm  to  the  said  parties,  of  the  second  part,  their  heirs 
and  assigns,  all  and  singular,  the  said  real  estate  belonging  to 
the  said  parties,  of  the  first  part,  of  which  they  stand  seised  or 
possessed,  situate,  lying,  and  being  in  the  city  and  county  of 
Philadelphia  aforesaid,  l)eing  lots  of  ground,  rents,  messuages, 
tenements,  and  hereditaments,  as  we  1  as  other  real  estate  else- 
where, together  with  the  hereditaments  and  appurtenances  to 
268 


Jfarc/i  27, 1829.]    OF   PENNSYLVANIA.  233 

[Lancaster  v.  Dolan.] 

the  same  belonging,  or  in  any  manner  appertaining,  and  also 
all  and  singular  their  estate,  right,  title,  interest,  property, 
claim,  and  demand,  both  in  law  and  equity,  of,  in,  and  to  the 
same,  belonging,  or  in  anywise  appertaining  thereunto.  To 
have  and  to  hold,  all  and  singular,  the  above  granted  and  bar- 
gained })remises,  with  every  of  the  appurtenances,  unto  the  said 
Burgess  Allison  and  Elias  Boudinot,  and  tlie  survivor  of  them, 
liis  heirs  and  assigns,  to  the  only  proper  benefit,  use,  and  behoof 
of  them  the  said  Burgess  Allison  and  Elias  Boudinot,  and  the 
fnirvivor  of  them,  his  heirs  and  assigns  for  ever;  in  special  trust 
and  confidence,  nevertheless,  that  the  parties  of  the  second  part, 
and  the  survivor  of  them,  his  heirs  and  assigns,  shall  and  will 
hold  the  one  moiety  of  tlie  premises  aforesaid,  or  equal  half 
thereof  to  and  for  the  use  and  behoof,  and  for  the  personal  sup- 
})ort  and  comfort  of  the  said  Mary  Berrien,  while  sole,  during 
her  natural  life ;  and  also  shall  and  will  permit  the  said  Mary 
Berrien,  while  sole,  to  use,  improve,  occupy,  possess,  and  enjoy 
the  same,  or  to  receive  the  rents,  issues,  and  profits  thereof, 
subject,  however,  to  all  prior  incumbrances  already  made  thereon 
by  the  parties  of  the  fii  st  part,  or  either  of  them ;  and  in  case 
the  said  Mary  should  marry  again,  then  the  moiety  of  the  said 
premises  to  be  held,  by  the  parties  of  the  second  part,  and  the 
survivor  of  them,  liis  heirs  and  assigns,  for  the  only  use  and 
benefit  of  the  said  Mary,  personally,  and  free  from  all  inter- 
ference, or  claim,  or  control,  of  her  husband,  or  any  other  per- 
son whatsoever ;  and  the  personal  receipt  or  discharge  of  the 
said  Mary,  notwithstanding  her  coverture,  shall  be  the  only 
voucher  or  discharge  for  any  payment  that  shall  be  made  under 
this  trust  therefor.  And,  in  further  trust,  as  to  the  other  moiety 
or  remaining  equal  half  part  of  the  *above  granted  and  r*904-i 
bargained  premises,  during  the  natural  life  of  the  said  *-  '^  -■ 
Mary ;  and  as  to  the  whole  of  the  said  premises,  after  the  death 
of  the  said  Mary,  the  said  ])arties  of  the  second  part,  and  the 
survivor  of  them,  his  heirs  and  assigns,  shall  and  will  hold  the 
same,  in  liivC  manner,  as  aforesaid,  to  and  for  the  only  use  and 
behoof,  and  for  the  personal  support  and  comfort  of  the  said 
Tacy  Prior;  and  also  shall  and  will  j)ermit  and  suffer  the  said 
Tacy  Prior,  while  sole,  to  use,  improve,  occupy,  possess,  and 
enjoy  the  same,  and  to  receive  all  and  singular,  the  rents,  issues, 
and  ])rofits  thereof,  subject,  however,  to  all  incumbrances  herc- 
tofi)re  made  thereon  by  the  said  Tacy  ;  and  in  case  the  said 
Tacy  should  marry,  then  the  same  to  be  held  to  and  for  the  only 
and  j)ersonal  benefit  of  the  said  Tacy,  whether  she  be  covert  or 
sole,  free  from  all  interference,  claim,  or  control  of  her  iuisband, 
or  other  person  whatsoever;  and  the  personal  receipt  and  dis- 
charge of  the  said  Tacy,  notwithstanding  her  coverture,  sliall  be 

25U 


234  SUPREME  COURT  [Philadelphia, 

[Lant»ster  v.  Dolan.] 

the  only  voucher  or  acquittance  for  any  payment  that  shall  be 
made  under  this  trust,  or  for  the  use,  occupation,  or  enjoyment 
of  any  part  thereof,  or  for  any  of  the  rents,  issues,  and  profits 
■rising  from  the  same.  And  on  this  further  special  trust  and 
confidence,  that  after  the  death  of  the  said  Tacy,  the  premises 
aforesaid  shall  be  held  for  the  use  of  such  person  and  persons, 
and  to  such  uses  and  benefits,  and  for  such  term  or  estate  as  the 
said  Tacy,  in  her  lifetime,  and  whether  she  be  married  or  single, 
and,  notwithstanding  her  coverture,  shall  designate,  order,  or 
direct  by  any  writing,  either  purporting  to  be  her  last  will  and 
testament,  or  other  writing  whatsoever,  executed  under  her 
hand  and  seal,  in  the  presence  of,  at  least,  two  credible  wit- 
nesses ;  and  in  case  the  said  Tacy  should  die  without  leaving 
any  such  writing,  purporting  to  be  her  last  will  and  testament, 
or  other  writing,  as  aforesaid,  then,  and  in  such  case,  the  said 
trustees,  &c.,  shall  hold  the  premises  to  and  for  the  sole  use  and 
behoof  of  such  issue  as  the  said  Tacy  may  leave,  equally  to  be 
divided  between  them  in  fee  simple.  But  if  the  said  Tacy 
should  die  wdthout  leaving  any  issue,  then  the  premises  aforesaid 
shall  be  held  in  trust  for  the  sole  use  and  benefit  of  the  brothers 
and  sisters  of  the  said  Tacy,  as  shall  be  living  at  the  time  of  her 
death,  though  but  of  her  half  blood,  share  and  share  alike,  in 
fee  simple,  or  to  them,  their  heirs  and  assigns  for  ever.  But  if 
the  said  Tacy  should  die  M'ithout  leaving  any  issue,  or  brother, 
or  sister,  then  the  premises  aforesaid  shall  be  held  in  trust  for 
and  to  the  use  of  her  heirs,  on  the  part  of  the  mother,  in  fee 
simple,  share  and  share  alike,  as  aforesaid.  And,  further,  that 
if  it  should  so  happen,  from  any  adventitious  circumstances, 
that,  in  the  opinion  of  the  said  trustees,  or  the  survivor  of  them, 
his  heirs  and  assigns,  it  should  be  more  advantageous,  and  for 
the  benefit  and  emolument  of  the  parties  of  the  first  part,  or 
either  of  them,  their  heirs  and  assigns,  to  have  any  part  of  the 
premises  aforesaid  sold  or  disposed  of,  that  then  the  said  trus- 
tees, and  the  survivor  of  them,  his  heirs  and  assigns,  with  the 


[*235] 


approbation  and  consent  of  the  parties  of  the  *first  part, 
or  the  survivor  of  them,  shall  and  may  sell,  bargain, 
grant,  and  convey,  in  fee  simple,  or  otherwise,  all  or  any  part 
of  .the  real  estate  aforesaid,  for  the  most  money  that  may  be  got 
for  the  same,  and  vest  the  net  proceeds  thereof  in  other  pro- 
ductive real  estate,  to  be  held  by  the  said  trustees,  or  the  sur- 
vivor of  them,  his  heirs  and  assigns,  under  and  subject  to  the 
same  trusts,  uses,  and  purposes  as  above  set  forth  :  and  it  is 
further  agreed,  that  in  case  the  said  trustees  shall  be  put  to  any 
costs,  charges,  or  expense,  in  the  management  of  this  trust,  the 
same  shall  be  paid  out  of  the  rents,  issues,  and  profits  of  the 
premises.  And  the  said  parties  of  the  second  part,  for  them- 
260 


March27,lS29.]     OF  PENNSYLVANIA.  235 

[Lancaster  v.  Dolan.] 

selves,  their  heirs,  executors,  and  administrators,  do  hereby 
covenant  and  grant,  to  and  with  the  parties  of  the  first  part, 
their  heirs,  executors,  and  administrators,  that  they,  the  parties 
of  the  second  part,  will  well  and  truly  execute  and  perform  the 
several  trusts,  above  set  forth,  to  the  best  of  their  abilities  and 
knowledge.     In  witness  whereof,  &c" 

This  deed  was  recorded  on  the  21st  of  February,  1815. 

James  Henderson,  Esq.,  who  was  examined  as  a  witness  for 
the  defendants,  deposed,  that  he  had  been  the  agent  of  Mrs. 
Berrien  since  Tacy  Prior's  deed,  in  1811  :  That  he  had  received 
the  rents  of  a  moiety  of  the  estate,  and  paid  one-fourth  part  to 
her,  or  her  order,  and  the  other  fourth  to  Tacy  Prior,  before 
her  marriage  with  Edward  Rogers,  and  since  that  time,  either 
to  herself,  or  to  her  husband,  at  her  request :  That  he  recollected 
having  heard  Mr.  and  Mrs.  Rogers  say  something  about  their 
consent  to  the  transfer  by  Lancaster  to  Ross :  That  he  wrote 
tlje  mortgage,  but  could  not  say  whether  or  not  he  mentioned 
the  deed  of  trust  to  Lancaster  :  That  he  believed  it  was  adverted 
to  after  the  execution  of  the  mortgage,  and  that  he  did  not  see 
Lancaster  at  all  before  the  mortgage  was  given. 

Binney,  for  the  plaintiff. — Whatever  estate  Tacy,  the  wife  of 
Edward  Rogers,  had  authority  to  dispose  of,  by  the  mortgage 
of  the  16th  of  March  1820,  Lancaster,  the  plaintiff,  is  entitled 
to  recover  in  this  ejectment.  The  question  then  is,  what  power 
had  she  by  virtue  of  the  deed  of  the  6th  of  January,  1815  ?  The 
positions  contended  for  are — 

1.  That  she  had  power  to  dispose  of  one-half  of  her  original 
moiety,  (or  one-fourth  of  the  whole)  for  the  term  of  her  own 
life,  and  the  reversion  of  the  whole  moiety  after  her  death,  and 
that  of  Mrs.  Berrien. 

2.  That  she  did  dispose  of  them  effectually  by  the  deed  of 
mortgage  of  the  16th  of  March,  1820. 

3.  That  she  did  also  dispose  of  the  one-fourth,  voluntarily 
■  granted  by  her  to  Mrs.  Berrien,  and  that  the  plaintiff  is  entitled 

to  recover  that. 

It  is  not  indispensable  to  the  plaintiff's  success,  that  the  court 
should  decide  whether  the  reversion  of  Mrs.  Rogers,  after  her 
death,  and  that  of  Mrs.  Berrien,  has  been  well  appointed  by  the 
*deed  of  the  16th  of  March.  It  is  only  material  to  de-  r^o'^fil 
cide  on  the  disposition  of  her  life  interest,  which  is  the  •-  ^ 
present  possessory  title  ;  but  as  it  is  important  to  the  parties  to 
know  their  rights,  present  and  future,  it  will  be  proper  to  ad- 
vert to  the  whole  question. 

1.  By  the  deed  of  the  6th  of  January,  1815,  Mrs.  Rogers  had 
an  estate  for  her  life,  in  one-fourth  of  the  premises  in  dispute. 

261 


236  SUPREME  COURT  [FhUadeljjhia, 

'  [Lancaster  v.  Dolan.] 

It  was  an  estate  in  her  trustees,  for  her  sole  aud  sej)arate  use 
f«jr  life,  and  the  deed  contained  no  express  restraint  on  her 
power  to  dispose  of  it.  There  is  no  mo<le  of  disposing  of  it 
pointed  out  so  as  to  admit  of  the  suggestion,  that  there  is  an  im- 
plied j)rohibitionof  all  other  modes  of  disposition.  On  the  sub- 
ject of  implied  restraints  much  controversy  has  existed,  some 
holding,  that  if  a  mode  be  pointed  out,  it  is  in  the  nature  of  a 
power,  and  all  other  modes  are  prohibited  ;  while  others  hold 
that  the  wife  has  the  general  authority  of  an  owner,  and  that 
no  implied  restraint  arises  from  the  designation  of  a  mode  in 
which  she  may  convey.  Being  an  estate  for  her  separate  use 
for  life,  she  had  power  to  disj)ose  of  it  as  if  she  had  been  a  feme 
sole.  Bell  v.  Hyde,  Free,  in  Ch.  328  ;  Norton  v.  Turvill,  2  P. 
Wms.  144 ;  Greglv  v.  Cox,  1  Ves.  517 ;  Davison  v.  Gaixlner, 
Sugd.  on  Vend.  393 ;  Hulm  v.  Tenant,  1  Br.  C.  C.  16,  19,  21  ; 
Sugd.  on  Pow.  113,  114;  Clancey  on  Married  Women,  351. 
Whether  it  be  a  trust  in  another  to  receive  and  pay  her  the 
rents,  or  a  use,  to  occupy  and  receive  herself,  is  wholly  imma- 
terial. Sugd.  on  Powers,  115,  116,  118,  119;  Brown  v.  Like, 
14  Ves.  302  ;  Hesse  v.  Stevenson,  3  Bos.  &  Pull.  565  ;  Fettii)lace 
V.  Gorges,  1  Ves.  Jr.  46  ;  3  Ves.  Jr.  437  ;  9  Ves.  Jr.  524  ;  Jaques 
V.  The  Methodist  Epis.  Church,  17  Johns.  548;  3  Johns.  Ch. 
Rep.  108  ;  Newlin  v.  Newlin,  1  Serg.  &  Rawle,  275  ;  Dullam  v. 
Wampole,  1  Peters,  116.  The  only  case  in  which  the  wife  can- 
not dispose  of  the  whole,  is  where  it  is  not  her  own  separate 
property,  but  the  fund  is  given  by  the  husband  to  trustees,  to 
stand  in  the  place  of  maintenance  during  their  separation,  for 
which  he  continues  liable.  Hyde  v.  Price,  3  Ves.  Jr.  437 ;  Sugd. 
on  Pow.  117.  In  this  case,  the  estate  belonged  to  the  wife.  She 
only  could  tie  her  hands,  and  she  has  not  done  so.  As  to  her 
life  estate,  there  is  then  no  restraint  to  deprive  her  of  the  power 
to  dispose  of  it  as  a  feme  sole ;  to  charge  and  encumber  it  as  she 
pleased. 

As  to  the  reversion,  she  had  power  to  dispose  of  it,  by  any 
writing  under  her  hand  and  seal,  executed  in  the  presence  of 
two  credible  witnesses.  There  is  no  other  restriction.  The 
mortgage  may  be  considered  as  a  valid  transfer,  and  as  an  ap- 
pointment also.  As  a  transfer,  it  had  her  separate  examination, 
an  assurance  that  it  was  not  done  by  her  husband's  influence. 
It  was  the  statutory  mode  prescribed  for  the  conve3'ance  of  the 
wife's  estate  by  the  act  of  the  24th  of  February,  1770,  sect.  2, 
Purd.  Dig.  117,  which  declares  that  such  a  conveyance  shall  be 
&s  valid  as  if  it  were  executed  by  a  feme  sole.  It  has,  too,  all 
the  characteristics  of  a  good  appointment.  It  was  executed 
r*9'^71  under  hand  and  seal,  which  M'as  all  the  *deed  of  trust 
L  '^  -I  required.  It  is  an  established  rule,  that  if  the  grantor 
262 


.Wa/-cA27,lS29.]     OF  PENNSYLVANIA.  237 

[Lancaster  v.  Dolan.] 

has  both  a  power  and  an  interest,  and  he  creates  an  estate  which 
cannot  be  fed  out  of  his  interest,  it  shall  be  fed  out  of  his 
power,  though  there  be  no  reference  to  it.  Sudg,  on  Powers, 
212,  294,  296,  297,  298  ;  Campbell  v.  Leach,  Amb.  740.  If 
he  has  a  power,  and  no  estate,  a  conveyance  generally,  \vith  the 
requisite  formalities,  wall  take  effect  under  his  power,  though 
made  without  reference  to  it.  Sir  Edw.  Clerr's  Case,  Sudg.  on 
Pow.  282.  A  mortgage  is  therefore  a  good  disposition  of  the 
estate.  Peace  v.  Spierin,  2  Dess.  Chan.  Rep.  460,  is  an  analo- 
gous case. 

As  to  the  settlement  on  Mrs.  Berrien,  it  was  voluntary,  and 
therefore  fraudulent  and  void  against  a  subsequent  purchaser. 
This  is  a  great  question,  but  it  is,  at  this  day,  settled  beyond  all 
doubt  in  England  under  the  stat.  27  Eliz.  ch.  4,  sec.  2,  by  deci- 
sions which  are  binding  authorities  here.  The  legal  presump- 
tion is,  that  a  party  who  subsequently  sells  for  a  valuable  con- 
sideration, did,  by  his  former  voluntary  conveyance,  intend  to 
deceive.  Goodie's  case,  5  Co.  60 ;  Colville  v.  Packer,  Cro.  Jac. 
158  ;  Prodgers  v.  Langham,  1  Sid.  133  ;  White  v.  Hussey,  Prec. 
in  Ch.  14 ;  Tonkins  v.  Ennes,  1  Eq.  Ab.  334 ;  White't'.  San- 
son!, 3  At^.  41 2 ;  Lord  Towuseud  v.  Windham,  2  Ves.  10 ; 
Roe  V.  Milton,  2  Wills.  356 ;  Goodright  v.  Moses,  li  W.  Black. 
1019  ;  Chapman  v.  Emery,  Cowp.  280.  This  still  continues  to 
be  the  settled  and  decided  law.  Doe  v.  Martin,  1  Bos.  &  Pull. 
832  ;  Mercer  v.  Welsmore,  8  D.  &  E.  528  ;  Evelyn  v.  Templar, 
2  Br.  C.  C.  149;  Roberts  on  Frauds,  13,  17,  33,  37,  66,  73; 
Ridgway's  Lessee  v.  Underwood,  Whart.  Dig.  291,  pi.  26,  1st 
Edit. 

That  a  mortgagee  is  a  purchaser  is  well  settled.  1  E<|.  Cas. 
Ab.  353 ;  Chapman  v.  Emory,  Cowp.  280 ;  Roscarrick  v. 
Barton,  2  Chan.  Ca.  220  ;  Senhouse  v.  Earle,  Ambler,  289  ; 
Roberts  on  Frauds,  373,  392;  Verplank  v.  Sterry,  12  Johns. 
536. 

J.  R,  Ingersoll,  for  the  defendant  made  three  points  : — 

1.  The  mortgage  is  ineffectual  to  bind  any  of  the  property 
contained  in  it. 

2.  If  operative  at  all,  it  can  only  affect  the  life  interest  of 
Tacy  Rogers  in  one-fourth  of  the  premises,  and  can  have  no 
effect  either  upon  the  one-fourth  which  belongs  to  Mrs.  Berrien, 
or  on  the  remainder  in  the  whole,  which  belongs  to  Mrs.  Rogers' 
children. 

3.  And,  at  all  events,  it  cannot  bind  more  than  one-fourth  of 
the  premises  claimed,  the  other  one-fourth  being  a  life  estate 
vested  in  Mrs.  Berrien,  who  is  in  full  life. 

1.  The   broad  question   has  never  yet  been  determined  in 

263 


237  SUPREME  COURT  [Philadelphia, 

[Lancaster  v.  Dolan.] 

Pennsylvania,  whether  a  feme  covert,  wlio  has  executed  a  con- 
veyance of  her  separate  estate  to  trustees,  can  make  any  further 
disposition  of  it  herself,  except  under  the  j)rovisions  of  the  deed 
of  trust ;  that  is,  whether  the  enumeration  of  her  powers  limits 
them  to  that  enumeration,  or  the  absence  of  particular  restric- 
tions leaves  her,  where  unrestrained  by  special  clauses,  to  dis- 
r*2'^8l  P^®^  ®^  *^®  property  as  she  *pleases.  In  the  former 
L  -I  case,  she  can  do  nothing  but  what  she  is  specially  author- 
ize<l  to  do ;  and,  in  this  case,  the  mortgage  not  being  enumerated 
among  her  powers,  it  is  void  on  that  account  alone.  In  the 
latter  case,  she  can  do  everything  which  she  could  do,  if  the 
deed  of  trust  had  never  been  made,  unless  there  are  restrictions 
by  implication,  for  there  are  certainly  none  of  an  express  and 
positive  character.  If  she  has  this  power,  one  of  the  great 
objects,  perhaps  the  principal  one  of  a  marriage  settlement,  is 
frustrated.  The  objects  generally  in  view  in  making  marriage 
settlements,  are,  first,  to  prevent  a  husband's  creditors  from 
making  a  direct  and  forcible  invasion  on  the  separate  property  of 
the  wife.  This  does  not  need  any  settlement  if  the  property  has 
never  been  reduced  to  his  possession ;  and  even  where  it  has 
been,  he  in  many  instances  becomes,  and  in  equity  is  treated,  as 
trustee  for  his  wife.  Even  a  court  of  law  will  sometimes  extend 
its  protection  to  the  wife  against  the  husband,  holding  that  the 
persons  named  in  a  will  as  trustees  for  the  person  from  whom 
she  claimed,  were  also  to  be  considered  as  trustees  for  her. 
2  Roper,  152,  153. 

The  second  object  of  such  a  settlement  is  to  guard  against  the 
necessities,  rapacity,  and  undue  influence  of  the  husband  him- 
self, which  rarely  can  be  done  without  a  deed  of  settlement,  and 
which  is  always  in  view  when  such  a  deed  is  made.  This  last 
and  main  object  will  be  entirely  frustrated  on  the  principle  which 
the  plaintiff  maintains.  It  is  no  answer  to  say,  that  as  soon  as 
the  law  is  pronounced  it  will  be  known  and  followed,  and  mar- 
riage settlements  hereafter  framed  in  accordance  with  it. 
Many  exist  at  this  moment,  and  involve  property  to  an  incal- 
culable amount,  the  dispositions  of  which  cannot  now  be 
changed. 

This  point  is  undecided  in  Pennsylvania.  In  New  York  the 
final  decision  was  in  favour  of  the  wife's  power.  The  elaborate 
views  of  Chancellor  Kent  led  him  to  a  different  result,  but  two 
judges,  (Spencer  and  Piatt,)  and  a  majority  of  the  senators  dif- 
fering from  him,  his  opinion  was  reversed.  17  Johns.  594;  3 
Johns.  Ch.  R.  19.  In  South  Carolina  the  final  decision  was 
against  the  wife's  power.  Chancellor  Dessaussure  having  given 
a  different  opinion,  which  was  reversed.  Ewing  v.  Smith,  3 
Dess.  417.  As  to  the  English  cases,  Chancellor  Kent  savs, 
264 


March  27,  lB2d.]    OF  PENNSYLVANIA.  238 

[Lancaster  v.  Dolan.] 

(3  Johns.  Cli.  E.  86,)  "At  the  first  glance  of  the  authorities 
they  appear  to  be  full  of  contradiction  and  confusion."  The 
law  cannot,  therefore,  be  considered  fus  settled.  On  each  side 
formidable  names  are  to  be  found :  Lord  INIacclesfield,  Lord  Tal- 
bot, and  Lord  Hardwicke,  are  one  way,  while  Sir  William  Grant, 
Lord  Bathurst,  Sir  Pepper  Arden,  Lord  Roslyn,  and  Lord 
Alvanly  are  the  other  way.  Lord  Tlmrlow  and  Lord  Eldon 
may  be  considered  as  doubtful.  Coverly  v.  Dudley,  3  Ark.  541  ; 
Gas.  Temp.  Talb.  43  (note);  2  Ves.  Jr.  488;  4  Yes.  129; 
5  Ves.  692;  4  Bro.  Gh.  Ga.  483;  1  Bro.  Gh.  Ga.  16  ;  3  Ves. 
437;  11  Ves.  209.  Turning  aside  from  the  troubled  current 
of  authority,  how  should  it  be  on  principle?  By  *a  deed  r;(:.',oQi 
of  trust  the  property  passes  out  of  the  woman  who  has  L  -■ 
been  its  proprietor.  It  is  a  gift  to  certain  purposes,  which  she 
cannot  of  herself  change,  because  the  only  mode  of  change 
contemplated  is  pointed  out,  viz.,  by  the  trustees  with  her  con- 
sent. It  is  a  limited,  special  power,  which  must  be  specially 
pursued.  Various  alterations  have  taken  place  in  the  law  of 
marriage.  It  was  formerly  held,  that  separation  and  separate 
maintenance  made  the  wife  liable  solely.  But  it  is  otherwise 
now.  Glancey,  63,  64.  It  was  likewise  held,  that  the  same 
circumstances  rendered  a  wife  liable  to  a  commission  of  bank- 
ruptcy. Ex  parte  Preston,  Cooke's  Bank.  Law,  30.  The  prin- 
ciple on  which  courts  of  equity  formerly  went,  in  relation  to  this 
subject,  would  not  now  be  upheld.  Lord  Macclesfield  says,  "  It 
is  against  common  right  that  the  wife  should  have  a  separate 
property  from  her  husband,  and  therefore  all  reasonable  intend- 
ments are  to  be  made  against  her."  Powel  v.  Haukey,  2  P. 
Wms.  82.  A  married  woman  certainly  has  not  more  power 
over  her  separate  estate  than  another  person.  It  is  not  an 
uncommon  thing  for  a  dissipated,  an  indifferent,  or  a  weak  man 
to  convey  his  estate  in  trust,  in  order  to  place  it  out  of  his  own 
control.  When  he  has  done  so,  it  is  gone.  If  the  deed  con- 
tain no  reservations  to  himself,  it  is  gone  entirely ;  if  there  be 
reservations,  they  operate  as  exceptions  to  his  entire  relinquish- 
ment of  the  estate,  and  pro  tanto  enables  him  to  act.  But  the 
exceptions  prove  the  rule.  What  was  the  intention  of  this  con- 
tract? If  that  can  be  discovered  ex  visceribui^,  it  will  be  car- 
ried into  effect.  Great  stress  is  not  laid  on  the  word  "  only," 
though  it  occurs  more  than  once  in  the  deed.  No  one  can 
doubt  that  the  settlement  was  made  with  a  view  to  protect  her 
property  from  her  husband's  debts,  and  from  the  consequences 
of  her  own  fondness  or  fears,  which  might  lead  her  to  discharge 
them.  The  protection  contemplated  was  not  only  from  his 
debts,  but  from  his  interference,  which  was  as  much  to  be 
dreaded,  if  exercised  through  her  agency,  as  independently  of 

265 


239  SUPREME  COURT  [Philadelphia, 

[Lancaste)'  v.  Dolan.] 

it.  It  was  for  her  personal  support  and  comfort  that  the  fund 
was  set  apart,  and  therefore  it  could  not  be  alienated.  Knight 
V.  Dowling,  Carthew,  120;  Herring  i'.  Brown,  Id.  23;  Sugd. 
on  Pow.  116,  299 ;. 3  Johns.  Ch.  R.  88 ;  Hyde  v.  Price,  3  Ves. 
437  ;  9  Ves.  524. 

The  mortgage  is  not  such  an  appointment  as  the  deed  of  trust 
contemplated.  The  provision  is,  that  she  may  designate  the 
uses,  persons,  &c.,  for  which  and  for  whom  the  estate  shall  be 
held  by  any  writing  purporting  to  be  a  last  will  and  testament, 
or  other  writing,  &c.,  but  it  must  be  a  designation  to  take  effect 
after  her  death.  The  provision  in  the  latter  part  of  the  will  for 
a  sale,  does  not  support  the  mortgage,  because  the  sale  must  be 
by  the  trustees,  though  the  approbation  of  the  cestui  que  trust 
is  required.  The  appointment,  too,  must  be  connected  with  the 
trust.  The  trustees  are  to  hold  on  special  trust  and  confidence, 
for  such  uses  as  she  may  designate,  but  this  mortgage  takes 
from  them  all  trust  and  confidence,  by  destroying  the  trust 
r*94.m  ^^^^^^  altogether.  Again,  the  power  *must  be  strictly 
L  -J  complied  with.  Sugd.  on  Powers,  211,  213,  215.  Upon 
the  principle  of  intention,  all  the  cases  in  Pennsylvania  have 
been  decided.  Dallam  v.  AYampole,  1  Pet.  116,  was  a  case 
of  personal  property,  the  principal  of  which,  and  not  merely 
the  interest,  was  settled  to  the  sole  and  separate  use  of  the  wife. 
Any  receipt  from  her  would  hav^e  been  good  for  the  whole.  The 
case  of  Newlin  v.  Newlin,  (1  Serg.  &  Rawle,  275,)  went  on  the 
same  principle.  The  Chief  Justice  declares,  (p.  278,)  "The 
object  of  the  testator  was  to  give  his  daughter  the  absolute 
power  over  the  annuity,"  &c.  "  Her  receipt  was  to  be  their 
(the  trustees')  discharge ;"  and  when  she  received  the  money, 
she  might  have  given  it  to  her  husband,  or  paid  his  debts  with 
it.  No  such  power  is  to  be  found  in  the  deed  now  under  con- 
sideration. The  case  of  Peace  v.  Spierin,  (2  Dess.  460,)  does 
not  prove,  as  is  supposed,  that  the  mortgage  is  an  execution  of 
the  power  of  appointment.  That  case  shows  that  the  wife  was 
indebted,  at  the  time  of  the  settlement  and  marriage,  and  the 
mortgage  was  given  as  a  mere  substitution  for  the  mortgage  for 
the  purchase-money.  In  common  .  parlance,  a  mortgage  is  not 
a  deed  or  conveyance.  Mrs.  Rogers  did  not  suppose,  in  execu- 
ting it,  that  she  was  executing  the  appointment,  and  that  is  the 
test. 

The  position  is  assumed,  that  a  voluntary  deed  is  void  against 
a*  subsequent  purchaser,  either  with  or  without  notice ;  a  most 
harsh  and  unreasonable  doctrine,  if  it  be  law,  and  applicable  to 
this  case.  But  it  is  neither  the  one  nor  the  other.  The  })rinci- 
ple  asserted  is,  that  the  original  owner,  when  he  sells,  proves 
that  he  had  acted  fraudulently  in  making  the  former  voluntary 
266 


March  27, 1329.]    OF  PENNSYLVANIA.  240 

[Lancaster  v.  Dolan.] 

deed,  and  that  therefore  it  is  void.  This  may  be  true  as  re- 
spects the  grautor,  but  it  would  operate  very  unjustly  as  respects 
the  grantee,  who  may  have  made  many  justifiable  and  laudable 
arrangements,  founded  ui)on  the  supposed  ownership,  all  of 
which  are  to  be  frustrated  at  a  distant  day.  If  the  principle  of 
some  of  the  old  cases — that  a  voluntary  deed  is  void — be  estab- 
lished, it  will  carry  the  evil  even  beyond  this  point,  and  extend 
it  to  the  vendees  of  a  voluntary  grantee.  But  this  is  not  the 
law.  The  principles  of  the  case  of  Anderson  v.  Roberts,  (18 
Johns.  515),  are  perfectly  sound,  viz.  That  a  voluntary  deed 
is  not  void,  but  voidable.  That,  to  avoid  it,  the  conduct  of  the 
grantee,  as  well  as  that  of  the  grantor,  must  be  fraudulent : 
That  a  bona  fide  purchaser,  on  either  side  will  hold  the  property, 
and  that  the  construction  of  the  statutes  13  and  27  Eliz.  is  the 
same.  There  are  many  English  cases,  too,  of  an  old  date, 
which  do  not  support  the  principle,  that  a  voluntary  deed  is  for 
that  reason  void.  Sagittary  v.  Hide,  2  Vern.  44;  Jones  v. 
Marsh,  Cas.  Temp.  Talb.  64 ;  Doe  v.  Routledge,  Cowp.  710 ; 
Stephens  v.  Furman,  1  Ves.  73;  Ithell  v.  Beane,  lb.  215.  The 
argument  is,  that  the  subsequent  sale  aiFects  the  grantor 
with  fraud ;  but  it  is  to  be  remarked,  that,  in  the  present  in- 
stances, the  grantor  was  a  married  woman,  under  the  influence 
of  the  husband,  and  therefore  error  is  not  imputable  to  her. 
Marchioness  of  Blaudford  v.  Duchess  of  Marlborough,  2  Atk. 
545. 

*But  the  plaintiff  is  not  a  purchaser.  He  is  a  mere  cred-  r*  9_| ,  -i 
itor.  A  mortagee  is,  perhaps,  under  certain  circumstances,  ^  -' 
to  be  considered  a  quasi  purchaser.  He  may  bring  ejectment,  and 
thus  treiit  himself  as  a  purchaser ;  and  such  was  the  case  in  Chap- 
man V.  Emery.  But  if  he  acts,  not  as  a  purchaser  but  a  cred- 
itor, if  he  treats  the  mortgage  as  a  security  for  a  debt,  he  must 
be  considered  a  mere  creditor,  and  all  the  principles  applicable 
to  him  as  a  purchaser  cease.  This  point  is  decided  by  the  case 
of  Ridgway's  Lessee  v.  Underwood,  Whart.  Dig.  291,  pi.  27. 
The  principle  now  established  is,  that  a  voluntary  settlement  is 
not  fraudulent,  where  the  person  making  it  is  not  indebted  at 
the  time,  nor  will  subsequent  debts  shake  it.  Russell  v.  Ham- 
mond, 1  Atk.  15 ;  Read  v.  Livingston,  3  Johns.  Ch.  Rep.  481 ; 
Hildreth  v.  Sands,  2  Johns.  Ch.  Rep.  48. 

2.  The  two  instruments  of  October  24th,  1811,  and  January 
6th,  1815,  divested  Tacy  Prior  of  one-half  of  her  interest  in  the 
premises,  during  the  life  of  her  mother,  and  of  the  whole,  afler 
the  termination  of  her  own  life,  unless  she  disposed  of  it  in  the 
manner  provided  for  by  the  deed  of  trust.  In  the  absence  of 
such  a  disposition,  the  estate  was  to  go  in  the  channel  designated 
by  the  settlement,  which  in  some  respects  changed  tlie  regular 

267 


241  SUPREME  COURT  [Philadelphia, 

[Lancaster  v.  Dolan,] 

course  of  inheritance.  All  she  could  control,  under  any  circum- 
stances, was  her  life  estate  in  one-fourth,  and  being  now  dead, 
no  recovery  can  l)e  had  upon  it. 

3.  The  life  estate  of  Mrs.  Berrien  is  certainly  untouched  by 
anything  Mrs.  Rogers  has  done.  The  deed  of  1811  is  a  cove- 
nant to  stand  seised.  Such  an  instrument  is  good  upon  the 
consideration  of  blood,  and  cannot  be  revoked  at  the  pleasure  of 
the  covenantor;  2  Roll.  785,  1.  20.  Although  there  may  be 
difficulties  in  the  way  of  the  covenantee  suing  to  enforce  a  vol- 
untary agreement,  yet  her  protection  is  entire.  The  deed  of 
the  6th  of  January,  1815,  however,  leaves  no  ambiguity.  It 
confirms  that  of  1811,  specifically,  and  then  proceeds  to  vest  in 
other  hands  all  the  several  interests.  No  objection  is  raised  to 
it  on  the  ground  of  fraud  on  the  future  husband.  It  was  di- 
rected against  no  particular  person  whatever,  and  it  was  recorded 
soon  after  its  date. 

Reply. — It  is  objected,  1st,  that  a  feme  covert  has  no  power 
over  her  separate  estate,  except  what  is  expressly  given  to  her, 
and  for  this  Ewing  v.  Smith,  3  Dess.  417,  is  relied  on.  There 
is  no  warrant  for  this  doctrine  in  any  other  case,  and  it  is  con- 
trary to  the  law  of  Pennsylvania,  as  authoritatively  settled  in 
Newlin  v.  Newlin,  1  Serg.  &  Rawle,  275.  The  controversy  has 
mainly  been,  between  excluding  all  powers  of  disposition  except 
such  as  are  pointed  out,  and  excluding  none,  except  such  as  are 
negatived.  Newlin  v.  Newlin,  is  an  authority  to  show  that  no 
restraint  exists,  where  none  is  expressed.  The  intention  of  the 
testator  in  that  case  was  referred  to,  but  it  was  inferred  from  the 
absence  of  any  express  restraint. 

2.  It  is  said  that  Tacy  Prior  was  restrained  as  to  the  disposi- 
r*949"l  *^^°  *^^  ^^^  ^  interest,  because,  during  her  life,  the 
L  "'-'  premises  were  to  be  held  for  her  personal,  support  and 
comfort.     For  this  Sugd.  116,  is  cited  as  an  authority. 

If  this  were  law,  it  would  be  strange  doctrine  indeed,  since 
the  same  object  is  implied  in  the  settlement  of  every  separate 
estate,  and  in  none  more  than  in  that  upon  which  Newlin  v. 
Newlru  was  decided,  which  provided  that  the  interest  was  to  be 
paid  annually  for  the  daughter's  separate  use  and  benefit.  But 
this  is  not  Sugden's  doctrine,  nor  that  of  Hyde  v.  Price,  to 
which  he  refers.  The  words  "  personal  support  and  comfort," 
are  not  in  that  case.  The  characteristics  of  that  case  are,  that 
the  wife  was  not  to  receive  at  all,  but  another  was  to  receive  for 
her  maintenance,  and  that  a  trust  was  created  by  the  husband 
to  support  the  wife  during  separation.  The  characteristics  of 
the  present  case  are,  that  it  was  Tacy  Prior's  own  estate,  and 
that  she  was  to  receive  herself,  and  her  receipt  to  be  a  discharge. 
268 


3fa/-cA  27, 1829.]     OF  PENNSYLVANIA.  242 

[Lancaster  v.  Dolan.] 

It  is  impossible  to  imagine  larger  rights  than  she  has  giv^en  to 
herself.  She  was  to  use,  occupy  and  enjoy ;  to  receive  the  rents 
and  profits,  and  her  receipt  was  to  be  the  discharge,  not  to  the 
trustees,  but  to  the  tenants.  The  words  "  personal  comfort  and 
support,"  are  used  in  relation  to  her  use  while  sole,  while,  in 
case  of  marriage,  the  estate  is  for  her  "  personal  benefit,"  which 
shows  there  is  no  force  or  meaning  in  the  words.  Another 
argument  urged  in  support  of  this  objection  is,  that  the  estate 
was  to  be  free  of  all  interference  of  her  husband.  This  evi- 
dently means  in  his  own  right,  Jure  mariti ;  not  that  she  may 
not  dispose  of  it  to  him.  She  could  certainly  give  him  the  in- 
come, which  the  objection  supposes  she  could  not,  as  it  rejects 
his  interference  either  with  or  without  her  agency.  All  the 
decisions  are  against  the  doctrine  contended  for.  Separate  use, 
means  that  her  husband  cannot  interfere  with  the  estate  against 
her  will,  and  nothing  more.  No  stress,  it  is  admitted,  can  be 
laid  on  the  word  "only,"  and  "sole"  has  no  greater  force.  To 
the  argument  that  no  control  is  given  to  Tacy  Prior  over  the 
capital  during  her  life,  it  may  be  answered,  that  there  was  none 
in  the  case  of  Newlin  v.  Newlin,  nor  in  any  other  case  in  which 
a  question  has  arisen ;  nor  can  these  questions  arise  in  any  case 
in  which  such  power  is  expressly  given.  It  is  said,  too,  that  the 
power  to  sell  given  to  the  trustees,  implies  a  restraint  upon  the 
right  of  the  cestui  que  trust.  But  no  authority  has  been  cited  to 
show  that  a  restraint  on  the  wife  is  to  be  inferred  from  an  au- 
thority to  trustees.  The  absence  of  general  authority  in  the 
wife,  is  much  more  reasonably  to  be  inferred,  from  reserving  a 
particular  authority  to  her ;  and  yet  this  is  not  the  law.  No 
one  ever  supposed  that  because  he  gives  power  to  his  executor 
to  sell  the  real  estate,  his  heirs,  therefore,  cannot.  The  power 
is  granted  to  the  trustees  to  do  that  which  the  cestui  que  trust 
cannot  do.  It  is  to  them  or  the  survivor  to  sell,  with  the  con- 
sent of  the  cestui  que  tncsts,  or  the  survivor,  and  to  settle  the 
estates  purchased  with  tiie  proceeds,  upon  the  same  trusts. 
This  is  not  inconsistent  *with  a  right  in  the  cestui  que  r*9_io-| 
trust  to  transfer  her  interest  in  the  trust.  L  -  '  J 

3.  It  is  further  objected,  that  Tacy  Prior  could  not  by  mort- 
gage appoint  the  remainder,  after  her  estate  for  life ;  because, 
in  the  first  place,  the  power  reserved  requires  an  absolute  deed, 
and  not  a  mortgage.  This  is  not  conceded  to  be  the  law.  An 
appointment  by  way  of  mortgage,  satisfies  a  power  to  appoint, 
generally.  Sugd.  280  ;  Lascells  v.  Lord  Cornwallis,  Prec.  in 
Ch.  232 ;  Perkins  v.  Walsh,  1  Vern.  97.  Mrs.  Rogers's  was  a 
general  power  of  appointment.  A  general  power  is  the  right  to 
appoint  to  whom  the  donee  pleases ;  a  particular  power  is  re- 
stricted to  certain  objects.     "  A  general  power  is,  in  regard  to 

269 


243  SUPREME  COURT  [PhUadelpkia, 

.  [Lancaster  v.  Dolan.] 

estates  which  may  be  created  by  force  of  it,  tantamount  to  a 
limitation  in  fee.  He  (the  donee)  has  an  absohite  disposing 
j)()wer  over  the  estate,  and  may  bring  it  into  the  market  when- 
ever his  necessities  or  wishes  may  lead  him  to  do  so."  Sugd. 
432.  The  mortgage  is  also  objected  to  as  a  valid  appointment, 
because  it  takes  eU'ect  during  her  life,  whereas  the  remainder 
was  to  be  appointed  afler  her  death.  But  it  is  a  mistake  to 
suppose  that  the  trust  is  for  such  persons  as  she  shall  appoint 
to  take  afVer  her  death ;  the  trust,  after  her  death  is,  f(»r  such 
persous  as  she  shall  appoint  to  take.  There  is  no  necessity  that 
the  instrument  should  appoint  the  party  to  take  expressly  after 
death.  It  ha.s  already  been  shown,  that  there  is  no  necessity 
for  any  reference  to  the  power  of  appointment.  If  a  party  he 
cestui  que  trust  for  life,  with  power  to  appoint  the  remainder 
after  his  death  by  deed,  it  cannot  be  questioned  that  he  may 
convey  the  fee  absolutely,  or  mortgage  the  fee.  Whether  the 
estate  for  life  and  in  remainder  unite  and  make  one  estate,  it  is 
unnecessary  to  inquire.  In  the  present  instance,  the  plaintiff 
has  the  trust  as  extensively  as  Mrs.  Rogers  had  it,  and  how  the 
legal  estate  stands,  is  not  the  subject  of  inquiry  in  this  court. 

As  to  the  voluntary  conveyance.  The  plaintiff  is  a  pur- 
chaser, because  he  stands  in  the  shoes  of  a  purchaser  of  a  mort- 
gagee. A  purchaser  under  execution  upon  a  mortgage,  has  all 
the  rights  of  the  mortgagee.  It  is  a  sale  of  the  mortgagor's 
right  conveyed  to  the  mortgagee, — a  statutory  foreclosure  of 
the  mortgage.  Whart.  Dig.  291,  pi.  27.  The  distinction  taken 
between  bringing  ejectment,  and  scire  faxnas  is  without  solidity. 
The  form  of  the  remedy  does  not  vary  the  estate  or  the  character 
of  the  party.  The  deed  is  not  denied  to  be  voluntary,  in  regard 
to  Mrs.  Berrien.  The  great  weight  of  authority  proves  that 
such  a  deed  is  void  against  a  subsequent  mortgagee.  The  very 
case  before  the  court,  is  the  last  case  decided  in  England  before 
the  Revolution,  and  is  an  authority.  Chapman  v.  Emery,  Cowp. 
280. 

As  to  the  merits,  the  case  is  clearly  with  the  plaintiff.  He  is 
an  honest  lender  upon  a  mortgage  of  the  estate  of  the  wife. 
Equity  will  protect  hira,  and  supply  all  defects  in  the  appoint- 
ment.'  Sugd.  366,  369. 

r*94.4l  *The  opinion  of  the  court  was  delivered  by 
'•  J  Gibson,  C.  J. — Tacy  Prior,  being  seised  of  a  moiety 
of  the  premises,  executed  a  conveyance  to  trustees,  by  which 
she  limited  a  moiety  of  her  moiety,  to  her  mother,  Mary  Berrien, 
for  life,  and  the  residue,  together  with  the  remainder,  after  the 
death  of  Mrs.  Berrien,  to  her  own  separate  use  for  life :  the 
remainder  in  fee  to  such  person  as  she,  by  any  writing  in  the 
270 


March27, 1829.]     OF   PENNSYLVANIA.  244 

[Lancaster  v.  Dolan  ] 

nature  of  a  will  or  iastrumeut  under  her  hand  and  seal,  and 
executed  in  the  presence  of  two'  credible  witnesses,  should  desig- 
nate and  appoint ;  in  default  of  such  appointment,  to  her  issue, 
if  more  than  one,  equally,  in  fee ;  in  default  of  issue,  to  her 
brothers  and  sisters  in  fee ;  and  in  default  of  brothers  or  sisters, 
to  her  right  heirs  on  the  part  of  the  mother,  in  fee.  She 
married  Mr.  Rogers,  and  with  him  executed  a  mortgage  to  the 
plaintiff  of  the  entire  moiety ;  on  which  it  was  sold  and  pur- 
chased by  him  at  sheriff's  sale.  The  questions  which  arise, 
are : — 1.  Whether  the  conveyance  is  void  by  the  statute  27 
Eliz.  as  regards  the  estate  limited  to  Mrs.  Berrien  :  2.  Whether 
Mrs.  Rogers  could  dispose  of  the  estate  limited  to  her  own  sepa- 
rate use,  without  a  power  specially  reserved  :  and,  3.  Whether 
the  mortgage  was  an  effectual  execution  of  the  ])ower  as  regards 
this  remainder. 

It  must  be  admitted,  that  a  mortgagee  is  a  purchaser  within 
the  intent  of  the  statute ;  Chapman  v.  Emery,  (Cowp.  278,)  is 
in  point ;  and  whatever  may  have  been  the  character  of  the 
plaintifr  originally,  he  has  become  a  purchaser  to  every  intent, 
by  taking  the  thing  pledged,  in  satisfaction  of  the  debt.  The 
question  then  comes  to  this :  Shall  we  follow  the  English  judges 
in  holding  every  voluntary  conveyance  void  as  to  subsequent 
purchasers,  or  interpret  the  statute  anew,  in  reference  to  the 
circumstances  and  condition  of  our  own  country?  Had  the 
English  construction  been  established  before  the  American 
Revolution,  although  it  is  by  common  consent,  agreed  to  be 
harsh  and  repugnant  to  natural  justice,  I  would,  in  parity  of 
circumstances,  submit  to  it  on  the  ground  of  authority.  Whether 
it  was  so  established,  has  been  discussed  by  Chancellor  Kent, 
in  Sterry  v.  Arden,  (1  Johns.  Ch.  Rep.  266,)  and  Mr.  Justice 
Spencer,  in  Verplank  v.  Sterry,  (12  Johns.  Rep.  553),  where 
the  cases  are  collected  and  so  minutely  examined,  as  to  leave  no 
room  for  a  review  of  them  here.  The  conclusion  of  the  Chan- 
cellor is,  that  "  the  late  cases  have  declared  no  ucav  doctrine, 
and  have  only  followed  the  rule  as  they  found  it  long  before 
settled  by  a  series  of  judicial  decisions  of  too  much  authority  to 
be  there  shaken."  Mr.  Justice  Spencer,  on  the  contrary,  thinks 
that  the  authorities  prior  to  the  Revolution,  "  are  in  weight  and 
number  decisively  adverse  to  the  doctrine  which  now  prevails  in 
Westminster  Hall."  In  this,  the  learned  judge  undoubtedly 
asks  too  much.  But  he  might  have  conceded  much  without 
endangering  the  argument ;  for  Lord  Ellenborough,  on  whose 
opinion  the  Chancellor  particularly  relies,  goes  no  farther  than 
to  say  that  "the  weight,  number,  and  uniformity  *of  rit:()A--\ 
the  authorities"  (in  favour  of  the  modern  doctrine),  L  --  '  J 
"do  very  much  preponderate."     As  to  number  and  uniformitv, 

271 


245  SUPREME  COUliT  [Philadelphia, 

[Lancaster  v.  Dolan.] 

those  collected  by  him  stand  in  the  proportion  of  nine  to  eight ; 
which  certainly  shows  no  great  preponderance;  and  the  four 
added  by  Chancellor  Kent,  are  altogether  insufficient  to  satisfy 
us  that  the  question  had  been  put  at  rest,  even  though  some  of 
the  authorities  on  the  other  side  may,  as  he  alleges,  have  been  but 
dicta.  The  whole  mass  evinces  a  restless  and  an  unsettled  state 
of  tiie  professional  mind  both  on  the  bench  and  at  the  bar;  and 
although  the  weight  of  authority  undoubtedly  inclined  in  favour 
of  the  modern  doctrine,  it  could  with  no  propriety  \)e  considered 
as  established  at  the  declaration  of  our  independence,  the  period 
material  to  the  question  of  its  recognition  here.  Nothing  but 
an  uninterrupted  series  of  authorities  established  by  common  con- 
sent, ought  to  sustain  a  principle  on  which  no  titles  depend,  and 
which,  in  its  origin,  is  admitted  on  all  sides  to  have  been  erro- 
neous and  unjust.  The  statute  is  undoubtedly  in  force  here. 
It  does  not,  however,  in  terms  declare  voluntary  conveyances  to 
be  void ;  but  only  such  as  are  made  for  the  "  intent  and  purpose 
to  defraud  d,ud  deceive  such  persons  as  shall  afterwards  pur- 
chase." The  intent  and  purpose  were  consequently  left  to  the 
judges,  some  of  whom  shortly  afterwards  began  to  consider  every 
voluntary  conveyance  fraudulent  without  regard  to  the  truth  of 
the  case.  In  Cadogan  v.  Kennet,  (Cowp.  434,)  Lord  Mansfield 
expressed  an  opinion  that  the  common  law,  as  it  is  now  univer- 
sally known,  and  understood,  would  have  attained  every  end 
proposed  by  the  statutes  of  Elizabeth.  It  would  have  done  so 
undoubtedly ;  but  by  a  diiferent  process,  it  being  a  favourite 
maxim  of  the  common  law  that  fraud  must  be  proved  and  not 
presumed.  It  is  evident  that  the  judges  were  led  to  carry  the 
construction  beyond  the  maxim,  by  motives  of  policy  which,  I 
submit,  have  no  place  here.  Previous  to  the  fourth  year  of 
Queen  Anne,  there  was  no  provision  for  registering  conveyances 
in  any  part  of  England ;  and  they  are  registered  only  in  York- 
shire and  Middlesex  at  this  day.  It  is  evident  that  where  con- 
veyances took  effect  according  to  priority  of  date  without  regard 
to  notice,  gifts  afforded  extraordinary  facilities  to  fraud,  in  com- 
parison with  conveyances  for  a  valuable  consideration,  the 
existence  of  which,  in  cases  of  controversy,  couhl  be  shown  as 
explicative  of  the  transaction.  It  is,  therefore,  perhaps  not 
strange  that  the  judges  cut  the  matter  short  by  declaring  all 
voluntary  conveyances  void,  instead  of  embarrassing  themselves 
with  questions  of  notice ;  especially  as  the  equity  of  the  donee 
who  paid  nothing  for  the  estate,  might,  under  any  circumstances, 
seem  unequal  to  that  of  a  purchaser  who  had  paid  a  fair  price. 
With  us  the  case  is  entirely  different.  The  act  of  1775,  requires 
all  conveyances  to  be  recorded  in  six  months  ;  and  declares  that 
"  every  such  deed  and  conveyance  which  shall,  at  any  time  after 
272 


ifarcA  27, 1829.]     OF   PENXSYLYANIA.  245 

[Lancaster  v.  Dolan.] 

the  publication  hereof,  be  made  and  executed,  and  which  shall 
not  be  proved  and  recorded  as  aforesaid,  shall  be  adjudged 
fraudulent  and  void  *against  any  subsequent  purchaser  r^o^p-i 
or  mortgagee  for  valuable  consideration,  unless  such  deed  •-  ^-1 
shall  be  recorded  as  aforesaid,  before  the  proving  or  recording 
of  the  conveyance  under  which  such  subsequent  purchaser  or 
mortgagee  shall  claim."  This,  it  will  be  perceived,  is  predicated 
without  distinction  as  to  consideration  :  and  it  gives  rise  to  an 
irresistible  implication  in  favour  of  the  converse  of  the  i)roposi- 
tion — that  every  conveyance,  without  exception,  which  is  thus 
recorded,  is  effectual  against  subsequent  purchasers  and  mort- 
gagees. It  seems  to  me  the  question  might  be  safely  rested 
here.  To  say  the  least,  it  is  expressly  established,  that  convey- 
ances shall  take  eifect,  not  according  to  priority  of  date,  but  of 
record  notice.  Title  is  made  a  matter  of  record  and  negligence 
is  justly  imputable  to  every  one  who  purchases  without  having 
searched  the  proper  office.  Such  a  purchaser  can  pretend  to  np 
equity  against  one  who  has  done  what  the  law  requires,  to  ])ut 
him  on  his  guard.  It  is  admitted  that  u  voluntary  conveyance 
is  good  between  the  parties ;  and  it  is  a  common  principle  of 
equity,  that  an  assignee  with  notice,  must  abide  by  the  case  of 
the  assignor.  But  the  pretended  equity  of  a  subsequent  pur- 
chaser with  notice,  even  as  against  a  volunteer,  Avould  sjiring 
from  an  act,  the  consequence  and  design  of  which  would  be  to 
enable  the  donor  to  cheat  the  donee.  The  purchase  would  be 
an  act  of  collusion,  and  all  the  fraud  would  be  on  the  side  of  the 
purchaser.  The  palpable  injustice  of  this  has  drawn  from  the 
English  judges  an  expression  of  regret,  that  voluntary  convey- 
ances had  not  been  sustained  against  purchasers  with  actual 
notice.  With  them  a  distinction  between  actual  and  construc- 
tive notice  might  be  proper :  with  us,  where  it  is  the  fault  of 
the  purchaser  himself,  if  he  have  not  actual  notice,  there  is  not, 
and  there  ought  not  to  be,  a  difference.  Such  a  purchaser  is 
justly  chargeable  with  positive  negligence,  and  would  be  charge- 
able with  positive  fraud,  were  the  consequences  to  fall  on  any 
one  but  himself.  An  unregistered  conveyance  is  to  be  post- 
poned without  regard  to  its  consideration,  no  distinction  being 
made  by  the  terms  of  the  act ;  and  there  is  no  reason  for  post- 
poning a  registered  voluntary  conveyance,  when  untainted  with 
actual  fraud,  that  would  not  equally  attach  to  a  conveyance  for 
valuable  consideration.  The  injury  to  the  donee  would  be  as 
great,  although  as  he  gave  nothing  for  the  estate,  the  hardship 
would  be  less.  Still  there  would  be  a  hardship,  the  difference 
even  in  this  respect,  being  only  in  the  degree. 

As  therefore  the  matter  in  t-es  infegra  here,  we  are  at  liberty 
to  interpret  the  statute  according  to  the  dictates  of  justice  and 

VOL.  I.— 18  273 


246  SUPREME  COURT  [Philadelj)hia, 

[Lancatiter  v.  Dolan.] 

convenience :  at  all  events,  its  constrnction  mu.st  bend  to  the 
provisions  of  onr  own  statutes ;  and  we  are  consequently  of 
opinion,  that  the  estate  limited  to  Mrs.  Berrien,  is  unalTecteil  by 
the  subsequent  mortgage. 

In  consequence  of  tlie  death  of  Mrs.  Rogers,  since  the  trial, 
the  (juestion  which  respects  the  estate  limited  to  her  separate  use, 
although  exceedingly  important  in  its  principles,  involves  no  more 
r*9471  *^^  present  than  the  costs  of  the  action.     The  convey- 
L  ""     -I  ance  is  in  trust  "  to  permit  her  to  use,  improve,  occu]>y, 
possess,  and  enjoy ;  and  to  receive  all  and  singular  tlie  rents, 
issues,  and  profits."     A  use  thus  limited  to  any  other  than  a 
married  woman  or  feme  in  contemj)lation  of  marriage,  would  be 
executed ;  but  it  is  inmiaterial  whether  the  trust  l)e  to  pay  a 
married  woman  the  profits,  or  to  pern)it  her  to  receive  them,  it 
being  necessary  to  a  sej)arate  provision   that   the  legal  estate 
should   remain  in  the  trustees,  to   prevent  the  husband   from 
taking  the  profits  and  defeating  the  very  object  of  the  convey- 
ance.    (1  Sauud.  on  Uses,  197.)     The  estate  of  Mrs.  Rogei's, 
therefore,  is  a  trust,  and  without  any  power  of  disposition  being 
annexed  to  it  in  the  deed.     It  has  been  pressed  iri  the  argument 
that  such  a  power  is  an  inseparable  incident  of  the  ownershij). 
Nothing  in  the  law  is  more  to  be  deprecated,  than  those  deci- 
sions in  which  the  right  of  a  cestui  que  trust  to  dispose  of  his 
estate,  has  been  recognised.     Every  attempt  to  secure  a  provi- 
sion to  a  spendthrift  child  must  prove  abortive,  while  the  trus- 
tees are  bound  to  follow  any  disposition  of  it  which  he  may 
make.     It  is  still  more  unfortunate  that,  as  regards  their  sepa- 
rate estates,  femes  covert  have  been  regarded  in  equity  as  femes 
sole.     It  has  l)een  justly  remarked,  that  if  the  principle  be 
pushed  to  its  extent,  a  married  woman  who  has  trustees,  will  be 
infinitely  worse  protected  than  if  she  were  left  to  her  legal 
rights.     There  are  instances  of  wives  having  been  coaxed  or 
bullied  out  of  the  j)rotection  provided,  even  at  the  instant  when 
the  settlement  was  before  the  Court  of  Chancery.     Ought  we 
then  to  follow  this  principle  farther  than  our  own  decisions  have 
carried  it  ?     The  English  decisions,  since  the  declaration  of  our 
independence,  have  unsettled  everything.     In  some  it  has  been 
held  that  the  feme  may  exercise  absolute  dominion  without  an 
express  power  in  the  conveyance ;  in  others,  that  siie  can  exer- 
cise no  power  at  all ;  and  to  this  complexion  they  will  perhaps 
come  at  last.     But  it  is  agreed  on  all  hands,  that  her  ]K)wer  is 
not  to  be  extended  beyon^l  her  personal  estate  and  the  jirofits  of 
her  land.     She  has  not  in  a  single  instance  l^en  permitted  to 
lay  her  hands  on  the  inheritance.     There  is,  indeed,  no  case  in 
which  the  question  involved  the  exercise  of  a  power  ovor  her 
own  life  estate ;  but  if  her  power  does  not  comprehend  the  fee 
274 


J/arcA  27, 1829.]     OF   PENNSYLVANIA.  247 

[Lancaster  v.  Dolan.] 

M'hen  she  is  the  owner  of  it,  it  is  not  easy  to  understand  how  it 
can  comprehend  a  less  estate.  It  has  been  held  to  extend  to 
copyhold,  because  the  estate  can  be  surrendered  only  by  her 
act ;  and  as  she  is  exclusively  the  tenant,  and  the  husband's 
authority  is  suspended,  it  seems  there  is  no  objection  to  her  act 
in  the  court  of  the  manor.  But  there  is  no  instance  of  her 
liaving  been  permitted  to  dispose  of  freehold,  except  in  pursu- 
ance of  the  terms  of  the  trust,  or  by  way  of  po\ver  over  a  use. 
Peacock  v.  Monk,  (2  Ves.  190,)  is  express  to  the  point.  An 
agreement  to  dispose  of  the  profits  of  her  real  estate,  has  been 
executed  in  equity ;  but  in  a  later  case,  the  Court  of  Chancery 
lias  refused  to  enforce  a  security  on  rents  and  profits  under  sim- 
ilar circumstances.  Here,  however,  the  mortgage  *was  r*9  <  oi 
not  of  the  profits,  and  it  would  be  asking  too  much  to  re-  ■-  -• 
quire  us  to  treat  it  as  an  agreement  contrary  to  the  meaning  of 
the  parties. 

But,  it  appears  to  me,  the  trust  in  favour  of  JNIrs.  Rogers,  was 
intended  to  be  unalienable.  Although  the  distinctions  on  this 
head  are  justly  obnoxious  to  the  charge  of  subtilty,  there  is  no 
doubt  that  the  intention,  where  it  is  manifest,  must  prevail, 
although  it  be  evinced  by  less  than  an  express  clause.  Such  an 
intention  has  been  collected  from  very  slight  circumstances,  such 
as  a  contingent  interest  in  the  wife  after  her  husband's  death  ;  or 
a  direction  to  pay  the  profits  into  the  respective  hands  of  the 
testator's  sisters,  as  long  as  they  shall  live.  Here  the  trust  is 
expressed  to  be  "  for  the  personal  support  and  comfoi't  of  tiie 
said  Tacy ;"  a  clause  more  clearly  indicating  an  intent  to  prevent 
alienation  by  anticipation,  than  any  to  be  found  in  the  cases  in 
which  the  exception  prevailed ;  and  the  estate  of  Mrs.  Rogers 
would  therefore  be  unaffected  by  a  rigid  ap})lication  even  of  the 
English  cases. 

In  fine,  notwithstanding  the  case  of  Newlin  v.  Newlin,  (1 
Serg.  &  Rawle,  275,)  which  was  hastily  determined  on  an  ex- 
ception to  evidence,  we  are  entirely  prepared  to  adopt  the  con- 
clusions of  Chancellor  Kent,  in  The  Methodist  Epis,  Church  v. 
Jafjues,  (3  Johns.  Ch.  Rep.  108,)  that  the  English  decisions  are 
so  floating  and  contradictory,  as  to  leave  us  at  liberty  to  adopt 
the  true  principle  of  these  settlements ;  that  instead  of  holding 
the  wife  to  be  a  feme  sole  to  all  intents  as  regards  her  separate 
estate,  she  ought  to  be  deemed  so  only  to  the  extent  of  the  power 
clearly  given  in  the  conveyance  ;  and  that  instead  of  maintaining 
that  she  lias  an  absolute  riglit  of  di.-position,  unless  she  is  ex- 
pressly restrained,  the  converse  of  the  ]>roposition  ouglit  to  be 
established — that  she  has  no  power  but  what  is  expressly  given. 

We  are  of  opinion,  then,  tliat  the  ])laintiff  did  not  acquire  the 
estate  conveyed  to  the  separate  use  of  Mrs.  Rogers. 

275 


248  SUPREME  COURT  [Philadelphia, 

[Lancaster  v.  Dolan.] 

The  remaining  question  dei>ends  on  a  few  plain  elementary 
principles.  The  use  as  to  the  remainder  of  the  estate  was  ex- 
ecuted by  the  statute ;  consequently  the  j)ower  of  appointment 
reserved  to  Mrs.  Rogers,  being  general,  was  intended  to  be 
exclusively  for  her  benefit.  In  the  words  of  Mr.  Sugden,  a 
general  power  of  appointment  is,  in  regard  to  the  estates  that 
may  be  created  by  force  of  it,  tantamount  to  a  limitation  in  fee, 
not  merely  because  it  enables  the  donee  to  limit  a  fee  which  a 
particular  power  may  also  do,  but  because  it  enables  him  to  give 
the  fee  to  whomsoever  he  pleases.  He  has  an  absolute  disposing 
power  over  the  estate,  and  may  bring  it  into  the  market  when- 
ever his  necessities  or  wishes  lead  him  to  do  so.  (Sugd.  on 
Powers.  482,  485.)  But  a  power  to  sell  implies  a  power  to  mort- 
gage, a  mortgage  being  a  conditional  sale.  (Mills  v.  Banks,  3 
P.  Wms.  9.)  And  it  would  seem,  for  the  same  reason,  that  a 
power  to  charge  will  not  imply  a  power  to  mortgage.  Under  a 
general  power,  it  has  been  expressly  held  that  a  mortgage  is 
r*94.Ql  *^  revocation,  (Perkins  v.  Walker,  1  Vern.  97  ;  Thome 
L  ^  V.  Thonre,  lb.  141,)  and  there  is  no  reason  why  the 
donee  may  not  appoint,  by  way  of  mortgage,  as  he  may  treat 
the  estate  in  every  respect  as  his  own.  Here  the  mortgage  must 
be  intended  to  have  been  in  execution  of  the  power,  although 
it  contains  no  reference  to  it,  because  as  the  estate  created  by 
it,  cannot  be  served  out  of  Mrs.  Rogers's  interest,  it  must  neces- 
sarily be  served  out  of  her  power.  It  was  therefore  an  effectual 
appointment. 

Smith,  J.,  having  been  absent  during  the  argument,  in  con- 
sequence of  indisposition,  took  no  part  in  the  decision. 

Judgment  for  the  defendant,  non  obstante  veredicto. 

Cited  by  Ck>unsel,  1  Penn.  E.  345,  392 ;  3  Penn.  R.  162;  1  M.  410;  5  R.  148 ; 
3  Wh.  64;  4  Wh.  128 ;  5  Wh  62,  122,  527 ;  10  W.  98 ;  2  W.  &  S.  432 ;  7  W. 

6  S.  346;  2  Barr,  328;  4  Barr,  229;  5  Barr,  474;  7  Barr,  85;  9  Barr,  473;  2 
J.  113 ;  3  H.  401 ;  6  H.  269  ;  8  H.  301 ;  1  Par.  438  ;  12  H.  255 ;  3  C.  79,  217  ; 

7  C.  153 ;  8  C.  419 ;  10  C.  108 ;  11  C.  136, 374 ;  3  Wr.  504  ;  6  Wr.  334 ;  14  Wr. 
131 ;  2  S.  157  ;  3  S.  308 ;  3  G.  283 ;  6  S.  394 ;  6  S.  481 ;  7  S.  510 ;  8  S.  402  ;  11 
S.77;  14  8.210,211,222;  15  S.  295;  15  S.  471 ;  18  S.  103;  20  S.  504;  23  S.  190, 
191 ;  27  S.  362 ;  29  S.  474 ;  5  N.  383,  s.  c.  6  W.  N.  C.  78 ;  11  N.  389,  s.  c.  8  W.  N. 
C.444-  10.40;  2W.N.  C.  329;  4  W.N.  C.  25;  4W.N.C.351;  10  W.  N.  C. 
464 ;  12  W.  N.  C.  31 ;  14  W.  N.  C.  76. 

Cited  by  the  Court,  2  Ash.  451 ;  1  Par.  27  ;  3  Wh.  316 ;  1  W.  386 ;  5  W. 
379;  4  W.  &  S.  100;  6  W.  &  S.  487;  1  Barr,  114;  4  Barr,  98;  7  Barr,  532; 
9  Barr,  404;  2  C.  231 ;  14  Wr.  .386 ;  22  S.  402;  25  8.  94;  28  8.  391 ;  30  8. 
355 ;  5  N.  384 ;  s.  c.  6  W.  N.  C.  79. 

This  case  was  exphiined  and  approved  in  3  R.  130. 

Re-afhrmed  and  followed  in  1  Wh.  520;  2  Wh.  15;  4  Wh.  452;  9  W.  138; 

8  Wr.  238 ;  10  Wr.  399  ;  7  8.  372;  23  8.  192. 

The  doctrine  of  Lanca-ster  v.  Dolan  is,  that  a  married  woman  has  only  those 
powers  over  her  "separate  estate  in  eqnity  "  that  are  expressly  given  her  in 
the  instrument  creating  the  estate.     It  is  the  law  to-dav. 

The  Married  Woman's  Act  (1848)  created  another  kind  of  separate  estate 

276 


ilf(WcA27,1829.]    OF  PENNSYLVANIA.  249 

[Lancaster  v.  Dolan.] 

for  married  women,  which  has  been  called  her  "separate  estate  at  law."   Penn. 
Bvlvania  Co.  v.  Foster,  11  C.  134. 

A  separate  iise  or  "  separate  estate  in  equity  "  is  the  interest  of  a  married  woman 
in  a  trust  for  her  sole  and  separate  use.  An  estate  under  the  Act  of  1848,  or 
a  "  separate  estate  at  law,"  is  the  legal  title  that  a  married  woman  has  in 
property  which  she  owned  before  marriage,  or  which  has  since  become  vested 
in  her  by  any  form  of  conveyance,  and  which  is  not  limited  to  her  sole  and 
separate  use. 

In  respect  to  the  latter  estate,  the  wife  may  (1)  make  a  will ;  (2)  bind  it  by 
a  contract  for  necessaries ;  (3)  bind  it  by  acontrsict  for  repairs  or  improvement 
of  her  real  estate.  But  she  cannot  dispose  of  it  except  by  joining  witli  her 
husband  in  a  deed,  and  separJltely  acknowledging  the  same,  as  provided  by  the 
Act  of  1770:  Moore  v.  Cornell,  18  S.  320;  Lippincott  v.  Leeds,  27  S.  420  It 
was  at  first  thought  that  she  could  also  convey  it  separately,  and  there  are 
dicta  to  the  effect  that  she  had  all  the  power  over  this  estate  that  she  would 
have  were  she  a, ferae  sole:  1  J.  272;  1  H.  480;  4  H.  134;  but  these  cases  did 
not  stand  long ;  6  H.  506 ;  Moore  v.  Cornell,  supra. 

Tiie  separate  wse  became  entangled  in  the  confusion  that  existed  as  to  a 
married  woman's  power  over  lier  "  separate  estate  at  law,"  and  the  doctrine  of 
Lancaster  v.  Dolan,  was  for  a  time  overthrown.  The  case  of  Haines  »>.  Ellis, 
12  H.  253,  arose  upon  a  conveyance,  in  regular  form,  by  husband  and  wife  of  an 
estate  which  had  been  granted  directly  to  the  wife  for  her  sole  and  separate 
use.  It  was  held  that  the  conveyance  passed  a  marketable  title.  The  result 
of  this  decision  was  to  create  the  impression  that  Lancaster  v.  Dolan  was  over- 
ruled (as  appears  from  Mr.  Justice  Stkongj  s  opinion  in  the  case  of  Wright  v. 
Brown,  8  Wr.  224) ;  but  the  ground  on  which  it  was  rested  was  that  as  the 
conveyance  was  directly  to  the  wife  without  tlie  intervention  of  trustees,  it 
could  not  be  a  separate  Mse,  and  that  the  estate  was  therefore  one  which  the  Act 
of  1 848  allowed  the  wife  to  convey.  The  error  lay  in  holding  that  a  convey- 
ance to  a  trustee  was  necessary  in  creating  a  separate  use.  The  contrary  had 
been  frequently  decided:  4  W.  &  S.  95;  4  Barr,  228;  10  Barr,  423;  and 
comes  under  the  well-established  rule  that  equity  will  not  allow  a  trust  to  fail 
for  want  of  a  trustee.  Haines  v.  Ellis  was  overruled  in  sections :  in  Pennsyl- 
vania Co.  V.  Foster,  11  C.  134,  its  effect  was  overruled,  the  court  declaring  that 
the  Act  of  1848  created  a  new  separate  estate,  but  that  the  doctrine  of  Lancas- 
ter V.  Dolan  still  governed  a  separate  use.  The  court,  however,  did  not  repudiate 
the  real  error  of  Haines  v.  Ellis,  but  distinguished  that  case  as  one  in  which 
the  conveyance  had  been  madft  directly  to  the  wife  without  the  intervention 
of  trustees.  On  this  common  but  mistaken  ground  these  two  cases  might  have 
stood  together,  but  when  the  question  next  arose,  in  Wright  v.  Brown,  Haines 
V.  Ellis  was  first  overruled  on  the  point,  what  constitutes  a  "  separate  estate  in 
equity,"  and  then  declared  to  be  inconsistent  with  the  later  decision  of  Penn- 
sylvania Co.  V.  Foster,  and  therefore  overruled  by  it.  The  law  was  thus  re- 
stored to  its  old  position  under  Lancaster  v.  Dolan,  and  has  since  ratitained 
unshaken. 


277 


249  SUPREME  COURT  IPhUadelphia, 


[Philadelphia,  March  27, 1829.] 

The  Commonwealth,  for  the  use  of  Black,  against  Con- 
ard  and  Another. 

A  prothonotary  complies,  substantially,  with  the  directions  of  the  act  of 
assembly  of  the  24tli  of  February,  1806,  when,  in  entering  judgment  on  a 
bond  with  warrant  of  attorney,  upon  the  apjilication  of  the  party,  he  enters  on 
his  docket  the  names  of  the  obligor  and  obligee,  in  the  form  of  an  action,  as 

i»arlies,  the  date  of  the  bond  and  warrant  of  attorney,  the  penal  sum,  the  real 
lebt,  the  time  of  entering  judgment,  and  the  date  of  the  judgment  on  the 
margin  of  the  record. 

An  omission  bj'  the  prothonotary  to  enter  on  the  record  a  stay  of  execution 
provided  for  in  the  warrant  of  attorney,  is  not  such  a  neglect  of  duty  or  mis- 
take in  the  prothonotary,  as  will  work  a  forfeiture  of  his  official  bond,  and 
make  him  liable  to  the  party  for  the  amount  due  upon  his  judgment. 

A  prothonotary  who  wilfully  neglects  any  duty,  is  liable  upon  his  official 
bond  to  any  one  who  may  be  thereby  injured. 

This  cause  was  tried  at  Nisi  Pnus,  at  Philadelphia,  in  Feb- 
ruary, 1828,  when  a  verdict  was  rendered  for  the  plaiutilf,  sub- 
ject to  the  opinion  of  the  court  upon  the  facts  given  in  evi- 
dence, considered  as  a  special  verdict,  whether  or  not  the  plain- 
tiff was  entitled  to  recover. 

The  case  was  this  :  John  Conard  was  appointed  prothonotary 
of  the  Supreme  Court  in  the  year  1817,  and  on  the  31st  of 
December,  in  that  year,  gave  a  bond  to  the  commonwealth,  in 
the  sum  of  four  thousand  five  hundred  dollars,  with  Joseph 
Barnes  and  Samuel  C.  Michlin  as  his  sureties,  conditioned  that 
he  should  "  well  and  truly  and  faithfully,  in  all  things  execute 
the  duties  of  the  said  office  according  {o  law,"  &c. 

On  the  5th  of  December,  1818,  Ann  »Black  (for  whose  use 
this  suit  was  instituted),  brought  to  the  office  of  the  defendant  a 
bond  and  warrant  of  attorney  to  confess  judgment,  dated  the 
1st  of  December,  1818,  and  requested  the  prothonotary  to  enter 
judgment  thereon. 

The  prothonotary,  accordingly,  entered  judgment  in  the  fol- 
lowing manner,  viz. : 


[*250] 


"p.  p.  V. 


Ann  Black, 

V. 

"139.     Thomas  Dobson. 
5th  Dec.  1818.  Judgment. 


♦March  Term,  1818. 
Judgment  entered  5th  of  December, 
1818,  on  a  bond  and  warrant  of  at- 
torney, dated  1st  December,  1818, 
for  $7568,  conditioned  for  the  pay- 
ment of  $3784." 


The  bond  was  payable  in  one  year  from  its  date,  and  the 
warrant  of  attorney  contained  a  proviso  that  execution  should 
278 


.31  nx'h  27,  IS-Id.]     OF  PEXXSYLYAXIA.  250 

[The  Commonwealth,  for  the  use  of  Black,  v.  Conard  and  another.] 

nut  issue  until  the  expiration  of  oue  year  from  the  date  of  tlie 
bond. 

On  this  judgment  no  proccaling  took  place  until  the  20th  of 
November,  1823,  when  a  seirc  fachis  issued  to  revive  the  judg- 
ment for  another  period  of  iive  years.  In  the  meantime,  several 
judgments  were  obtained  against  Thomas  Dobsou,  and  a  mort- 
gage was  given  by  him.  All  his  real  estate  was  sold,  and  this 
court  decided  that  none  of  the  money  arising  from  the  sale  was 
applicable  to  the  payment  of  Ann  Black's  judgment.*  This 
suit  was  instituted  upon  tlie  official  bond  of  the  prothonotary, 
for  an  alleged  breach  of  duty  in  omitting  to  enter  on  the  docket 
the  tenor  of  the  bond,  and  the  stay  of  execution  provided  for 
in  the  warrant  of  attorney ;  in  consequence  of  which  the  lieu 
of  her  judgment  was  lost. 

Two  questions  were  argued, — 1.  Whether  the  facts  given  in 
evidence  proved  a  failure  of  duty  in  the  prothonotary  ? 

2.  If  they  did,  whether  the  plaintiff  was  entitled  to  recover 
upon  his  official  bond? 

Scott  and  Tod,  for  the  plaintiff,  referred  to  the  act  of  the  24th 
of  February,  1806,  Purd.  Dig.  409;  2  Salk.  417,  G60 ;  5  Co. 
53,  b. ;  Pennock  v.  Hart,  8  Serg.  &  Rawle,  369  ;  Boml)ay  v. 
Boyer,  14  Serg.  &  Rawle,  253;  Black  v.  Dobsou,  11  Serg.  & 
Rawle,  94 ;  1  Bac.  Ab.  659 ;  Commonwealth  v.  Wolbert,  6 
Biun.  293;  A^ard  v.  Lea's  Executors,  3  Yeates,  349 ;  Dallas 
V.  Chaloner's  Executors,  3  Dall.  500. 

T.  Sergeant  and  Chauncey,  for  the  defendants,  cited  3  Yeates, 
345  ;  Act  of  the  12th  of' March,  1791,  Purd.  Dig.  749  ;  Act  of 
the  30th  of  March,  1811,  Purd.  Dig.  697;  Pitt  v.  Y^aldeu,  4 
Burr.  2060 ;  8  Mass.  Rep.  57. 

The  opinion  of  the  court  was  delivered  by 

Smith,  J. — By  the  bond,  the  money  was  made  payable  in  one 
year,  and  in  the  warrant  of  attorney  to  confess  judgment,  was 
a  proviso,  that  execution  should  not  issue  for  one  year  from  the 
date  of  the  bond.  It  was  decided,  in  Pennock  v.  Hart,  8  Serg. 
&  Rawle,  369,  that  where  the  stay  of  execution  was  entered  on 
the  docket,  the  judgment  continued  for  five  years  from  the  ex- 
piration of  the  stay  of  execution.  If  the  prothonotary  had 
added  to  the  entry  of  the  judgment,  *the  words,  "with  rxcn.-i-i 
stay  of  execution  for  oue  year,"  the  lien  would  not  '-  '  -* 
have  been  lost. 


*  See  11  Serg.  &  Kawle,  94. 

279 


251  SUPREME  COURT  [Philadelphia, 

[The  Commonwealth,  for  the  use  of  Black,  r.  Conard  and  another.] 

The  interest  was  punctually  paid  on  this  bond,  up  to  the  1st 
of  Da-ember,  1828. 

The  official  bond  of  the  prothonotary  has  been  sued  by  Ann 
Black,  and  the  question  is, — was  this  such  a  neglect  or  mistake 
of  the  ])rothonotary,  as  to  forfeit  his  bond,  and  make  him  liable 
to  the  plaintiff  for  the  amount  due  upon  her  judgment? 

To  render  the  prothonotary  liable,  it  must  appear  that  he  com- 
mitted a  breach  of  the  conditions  of  his  bond.  And,  to  show  that 
he  has  done  so,  it  is  alleged  that  he  did  not  comply  with  the  di- 
rections of  the  act  of  assembly,  of  the  24th  of  February,  1806,  in 
two  particulars.  First,  in  not  entering  on  his  docket  the  tenor 
of  the  bond,  or  instrument  presented  to  him  by  Ann  Black. 
Secondly,  in  not  entering  the  judgment,  with  the  stay  of  execu- 
tion therein  mentioned.  In  order  to  decide,  whether  the  officer 
did,  or  did  not  comply  with  the  directions  of  the  act,  we  must 
necessarily  inquire  what  his  duties  were.  The  28th  section  of 
the  act  of  the  24th  of  February,  1806,  (Purd.  Dig.  409,)  directs, 
that  "it  shall  be  the  duty  of  the  prothonotary  of  any  court  of 
record  within  this  commonwealth,  on  the  application  of  any  per- 
son being  the  original  holder  (or  the  assignee  of  such  holder,) 
of  a  note,  bond,  or  other  instrument  in  writing,  in  which  judg- 
ment is  confessed,  or  containing  a  warrant  for  an  attorney  at 
law,  or  other  person,  to  confess  judgment,  to  enter  judgment 
against  the  person  or  persons,  who  ex'ecuted  the  same  for  the 
amount,  which  from  the  face  of  the  instrument,  may  appear  \o 
be  due,  without  the  agency  of  an  attorney,  or  declaration  filed, 
with  such  stay  of  execution  as  may  be  therein  mentioned,  for  the 
fee  of  one  dollar,  to  be  paid  by  the  defendant ;  particularly  en- 
tering on  his  docket  the  date  and  tenor  of  the  instrument  of 
waiting,  on  wdiich  the  judgment  may  be  founded,  which  shall 
have  the  same  force  and  effect  as  if  a  declaration  had  been  filed, 
and  judgment  confessed  by  an  attorney,  or  judgment  obtained 
in  open  court,  and  in  term  time."  And  it  further  directs,  that 
the  defendant  need  not  pay  any  costs  or  fee  to  the  plaintiff's 
attorney,  when  judgment  is  so  entered  on  any  such  instrument 
of  writing. 

I  do  not  think  the  object  of  the  act  was  merely  to  take  power 
from  the  attorneys,  and  to  give  it  to  the  prothonotary ;  but  that 
it  was  to  enable  the  citizens  to  transact  their  own  business  in  the 
offices,  so  far,  at  least  as  related  to  the  entry  of  judgments  on 
bonds,  notes,  or  other  instruments  of  writing,  in  which  an 
authority  to  enter  judgment  was  contained,  wathout  the  inter- 
vention of  attorneys ;  hence  the  act  declares  it  to  be  the  duty 
of  the  prothonotary,  for  the  fee  of  one  dollar,  to  enter  the 
judgment,  on  the  application  of  any  person,  who  should  be  the 
holder  (or  the  assignee  of  the  holder)  of  a  note,  bond,  or  other 
280 


JI/arcA27,1829.]     OF  PENNSYLVANIA.  251 

[The  Commonwealth,  for  the  use  of  Black,  v.  Conard  and  another.] 

instruaient  of  writing  of  the  nature  mentioned  in  the  act ;  and 
that  a  judgment,  so  entered,  should  have  the  same  force  and 
effect,  as  a  judgment  on  filing  a  declaration  and  confession 
*of  judgment  by  an  attorney.  Clearly,  then,  since  the  r*9-9-| 
prothonotary  is  required  to  enter  judgment,  upon  the  •-  "^ 
mere  application  of  the  party,  as  he  had  been  accustomed  to  do 
before  the  act  of  24th  of  February,  1806,  on  the  authority  and 
instructions  of  the  attorney,  he  is  bound  upon  such  application 
to  follow  tlie  directions  of  the  party  in  making  the  entry,  as  he 
was  obliged  to  follow  those  of  the  former,  in  entering  a  judg- 
ment by  warrant  of  attorney  and  confession  thereupon ;  and  he 
is  not  further  bound.  Neither  his  responsibility  nor  his  com- 
pensation is  increased  by  that  act.  He  was  entitled  to  the  fee  of 
one  dollar  for  entering  judgment  pursuant  to  the  p'ceeipe  of  an 
attorney,  and  he  is  entitled  to  no  more  for  entering  it  upon  the 
application  of  the  party.  When  the  party  gives  no  particular 
instructions,  the  prothonotary  could  only  be  liable  for  omitting 
to  make  a  special  entry,  not  required  by  the  act  of  assembly,  in 
case  he  acted  with  bad  faith. 

But  it  is  contended,  that  the  act  requires  the  prothonotary 
particularly  to  enter  on  his  docket,  the  date  and  tenor  of  the 
i^nstrument  of  writing,  on  which  the  judgment  may  be  founded, 
and  that  the  word  "  tenor "  has  a  legal  signification,  and  means 
transcript  or  copy.  If  this  were  so,  the  consequence  would  be, 
that  every  bond,  or  other  instrument  of  writing  would  have  to  be 
copied  on  his  docket,  verbatim  et  literatim^  which  could  not  have 
been  intended  by  the  legislature,  otherwise  they  would  have  at 
once  required  and  directed  the  officer  to  place  an  exact  transcript 
or  copy  of  the  writing  on  his  docket.  This  they  have  not  done, 
and  I  therefore  consider  them,  when  they  used  the  word  "  tenor," 
as  referring  to  the  substance  or  import  of  the  instrument,  which 
it  was  customary  with  attorneys,  when  they  confessed  judgments 
by  virtue  of  warrants  of  attorney,  to  set  out.  It  is  also  con- 
tended, that  the  act  of  the  prothonotary  is  a  mere  ministerial 
act ;  that  he  has  no  discretion,  but  must  obey  the  directions  of 
the  act  of  assembly.  The  directions  of  an  act  of  assembly  ought 
ever  to  be  obeyed,  not  only  by  the  officers  of  the  commonwealth, 
but  by  all  its  citizens.  I  am,  however,  by  no  means  prepared 
to  say  that  the  officer,  in  the  present  instance,  disobeyed  the  law 
or  directions  of  the  act,  so  as  to  render  him  liable  to  the  plain- 
tiff. It  is  to  be  observed,  that  almost  every  prothonotary  in  this 
state  has  a  different  form  of  entering  judgments,  which,  accord- 
ing to  the  late  Judge  Duncan,  is  "  as  various  as  their  faces." 
In  the  case  of  Helvete  v.  Rapp,  7  Serg.  &  Rawle,  306,  there  is 
a  form  varying  from  the  one  before  us.  There  the  record  was 
as  follows,  to  wit : 

281 


252  SUPREME  COURT  [Philadelphia, 

[The  Commonwealth,  for  the  use  of  Black,  v.  Conard  and  another.] 

''FnKlcrickltappI       p^^^^^^^ ?5,450.00 

"Francis  Helvete J        ^^^-^t, 2,725.38 

"  Plaintiff'  files  of  record  a  judgment  bond,  under  the  hand  and 
seal  of  defendant,  for  the  sum  of  5,450  dollars,  conditioned 
for  the  payment  of  2,725  dollars  and  38  cents,  on  or  before 
November  5th  next,  dated  the  5th  day  of  this  instant,  and 
entered  the  17th  of  May,  1815." 

r*2"^1  *Here  there  was  no  actual  judgment  entered,  at  least, 
'-  J  in  terms  there  was  none, — no  copy  or  transcript  of  the 
bond,  as  now  contended  for, — merely  the  penalty,  the  real  debt, 
the  date  of  the  bond,  when  payable,  and  the  day  of  entering 
the  same,  are  stated  ;  and,  although  the  bond  was  dated  on  the 
5th  of  May,  1815,  and  entered  on  the  17th,  and  payable  on  or 
before  the  5tli  of  November,  1815,  yet  nothing  is  expressly 
entered,  as  to  the  stay  of  execution.  This  was  decided  jjy  the 
Supreme  Court,  to  be  a  valid  entry  and  a  good  judgment ;  and 
the  learned  judge  who  delivered  the  opinion  of  the  court  said, 
that  there  being  no  literal  form  directed,  and  no  precedent  to 
guide  the  prothonotaries  in  the  performance  of  this  new  duty, 
each  had  adopted  his  own  mode,  and  that  many  of  the  entries 
scarcely  presented  a  feature  to  inform  purchasers,  or  designate 
a  judgment.  In  the  case  under  consideration,  we  think  that 
the  prothonotary  substantially  complied  with  the  directions  of 
the  act,  when  he  entered  on  his  docket  the  names  of  the  obligor 
and  obligee,  in  the  form  of  an  action  as  parties, — the  date  of 
the  bond  and  warrant  of  attorney, — the  penal  sum,  the  real 
debt,  and  the  time  of  entering  the  judgment ;  and,  moreover, 
the  date  of  the  entry  of  the  judgment  on  the  margin  of  the  record, 
where  the  same  judgment  was  entered,  according  to  the  act  of 
the  21st  of  March,  1772.  Should  we  now,  for  the  first  time, 
give  a  diiferent  interpretation  to  the  act,  it  would  lead  to  con- 
sequences extremely  unjust.  It  is  not  pretended,  that  in  this 
case  there  was  any  wicked  or  perverse  intention  on  the  part  of 
the  prothonotary, — he  is  free  from  any  such  charge :  so,  too, 
from  the  charge  of  ignorance,  and  of  particular  negligence.  If, 
then,  he  erred  at  all,  it  must  have  been  an  error  of  judgment  in 
the  interpretation  of  an  act  of  assembly,  which  cannot  legally 
render  him  liable.  As  well  might  it  be  said,  that  inferior  courts 
were  responsible  for  the  errors  of  their  judgments. 

But  it  is  further  said,  that  he  is  liable  to  the  plaintiff",  because 
he  did  not  enter  the  stay  of  execution  on  his  docket.  It  is  to 
be  observed,  that  the  stay  of  execution  is  no  part  of  the  bond, 
but  a  part  of  the  warrant  of  attorney ;  and  it  is  not  pretended, 
that  the  omission  to  state  the  stay  of  execution,  rendered  the 
282 


M»-cA27,1829.]     OF  PENNSYLVANIA.  253 

[The  Commonweiilth,  for  the  use  of  Bhvck,  r.  Conard  and  another.] 

entry  of  the  judgment  invalid,  or  the  judgment  itself  void.  The 
prothonotary,  aequainted  with  what  had  been  usually  done  in 
other  similar  cases,  placed,  in  tliis  case,  upon  his  docket,  what 
had  been  usually  placed  there  before,  and  no  more.  It  is  not 
alleged  that  he  acted  wrong  intentionally ; — neither  he,  nor  the 
plaintiff,  (indeed  very  few  lawy(;rs,)  foresaw  or  expected  the 
decision  in  Peiinock  v.  Hart,  made  in  1822.  Before  that  de- 
cision was  published,  a  scire  facias  to  revive  this  judgment 
actually  issued,  previous  to  the  expiration  of  the  five  years  from 
the  entry  of  the  bond.  Was  it  incumbent  on  this  officer  to 
know,  or  rather  foreknow,  the  construction  given  to  the  act  in 
Pennock  v.  Hart?  The  plaintiif  had  by  the  entry  of  the  pro- 
thonotary a  lien — a  valid  and  binding  judgment,  and  a  right  to 
issue  execution  on  it  at  the  end  of  a  year  :  she  did  not,  however, 
*issue  an  execution,  nor  revive  the  judgment,  but  by  r:i.9-_i-| 
inattention  lost  her  lien.  Whose  fault  was  this?  Was  L  -^  J 
it  the  prothonotary's  ?  The  plaintiff'  evidently  thought,  as  the 
prothonotary  did,  that  her  lien  would  continue  for  a  period  of 
five  years  from  the  day  of  its  entry  on  record  ;  for  on  the  20th 
of  November,  1823,  she  issued  a  scire  facias  to  revive  her  judg- 
ment— only  fifteen  days  anterior  to  the  expiration  of  the  five 
years.  At  this  time,  I  presume,  the  decision  in  Peiwock  v. 
Hart,  had  become  known,  and  it  was  supposed,  might  operate 
on  this  judgment;  the  difficulty  then  started  for  the  first  time; 
and  it  occurred  to  the  plaintiff  that  the  prothonotary  nuist  be 
liaWe,  although  he  had  entered  for  her  a  valid  judgment,  attach- 
ing a  lien  on  the  defendant's  real  estate,  and  thereby  entitling 
her  to  a  comjjlete  right  to  all  the  benefits  of  such  a  judgment, 
wdiich  she  could,  at  the  proper  time,  have  enforced,  althotlgh 
the  stay  of  execution  was  not  stated  on  the  record.  Besides, 
the  plaintiff  could  have  continued  her  lien,  if  she  had  taken  out 
an  execution,  or  had  issued  her  scire  facias  withiu  the  proper 
period ;  the  lien  was  lost  by  her  neglecting  to  take  the  neces- 
sary steps  to  preserve  it,  or  by  mistaking  the  law.  In  such  a 
case,  I  never  can  charge,  as  a  default  of  the  officer,  that  which 
is  the  negligence  or  default,  or  ignorance  of  the  party. 

In  the  course  of  the  argument,  it  was  contended  by  the  able 
and  respectable  counsel  for  the  defendants,  that  if  there  had 
been  any  failure  of  duty  in  the  officer,  it  was  not  such  as  could 
be  embraced  by  his  official  bond ;  and  that  the  plaintiff'  was  not 
entitled  to  any  benefit  from  it.  In  reference  to  which  it  may 
suffice  to  say,  that  if  the  evidence  in  this  case  had  shown  a  clear 
failure  of  duty  in  the  prothonotary,  such  a  failure  would  have 
amounted  to  a  breach  of  the  condition  of  his  bond,  of  which  the 
plaintiff  could  have  availed  herself.  A  prothonotary  wilfully 
neglecting  any  duty,  which  he  is  bound  to  perform,  is  liable 

283 


254  SUPREME  COURT  [Philadelphia, 

[The  Commonwealth,  for  the  use  of  Black,  v.  Conard  and  another.] 

within  the  terms  of  the  condition  of  the  bond,  which  was  in- 
tended for,  and  inures  to,  the  benefit  of  every  citizen  wlio  may 
be  injured.  Upon  the  whole,  we  think  the  judgment  should  be 
rendered  for  the  defendants. 

Judgment  for  the  defendants. 

Cited  by  Counsel,  1  Penn.  R.  275 ;  1  Wh.  272;  2  W.  472 ;  9  W.  99. 
Cited  by  Court,  20  S.  234. 


[*255J  •[Philadelphia,  March  27, 1829.] 

Moser  against  Libenguth  and  Another,  Administrators 
of  Libenguth. 


A  bond  in  which  the  obligors  declare  themselves  to  be  jointly  held  and  firmly 
bound  to  the  obligee,  in  the  sum  of,  Ac,  to  which  payment  they  bind  themselves, 
their  heirs,  executors,  and  administrators,  and  every  of  them,  is  a  joint,  and  not  a 
joint  and  several  bond. 

Appeal  from  the  decision  of  Smith,  J.,  at  the  Circuit  Court 
of  Montgomery  county,  held  the  10th  of  April,  1829. 

Peter  Moser  brought  this  action  of  debt  against  Eve  Libenguth 
and  John  Libenguth,  administrators  of  Jacob  Libenguth,  de- 
ceased, upon  a  bond  in  these  words,  viz. 

"  Know  all  men  by  these  presents — That  I,  Joseph  Libenguth, 
of  the  borough  of  Pottstovm,  and  Jacob  Libenguth  of  Pottsgrove 
township,  all  of  Montgomery  county  and  state  of  Pennsylvania, 
ar^  jointly  held  and  fi-mly  bound  unto  the  said  Peter  3Iosa',  of 
tlie  borough  of  Pottstoum  in  the  county  of  Jlontgomery  and  state 
of  Pennsylvania,  in  the  sum  of  four  hundred  pounds  in  gold  or 
silver  lawful  money  current  in  Pennsylvania,  to  be  paid  to  the 
said  Peter  Moser,  or  to  his  certain  attorney,  executors,  adminis- 
trators, or  assigns ;  to  which  payment  well  and  truly  to  be  made 
and  done,  we  bind  ourselves,  our  heirs,  executors,  administrators, 
and  every  of  them,  firmly  by  these  presents.  Sealed  with  our 
seals,  dated  the  second  day  of  April,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  twenty-one. 

"  The  condition  of  this  obligation  is  such — That  if  the  above 
bounden  Joseph  lAbenguth,  or  Jacob  Libenguth,  or  either  of  them, 
or  their  heirs,  executors,  administrators,  or  any  of  them,  shall 
and  do  well  and  truly  pay  or  cause  to  be  paid,  unto  the  above 
named  Peter  Moser,  or  to  his  certain  attorney,  executors,  adminis- 
trators, or  assigns,  the  just  and  full  sum  of  two  hundred  pounds, 
tvUh  lawful  interest,  in  like  money  as  aforesaid,  at  or  upon  the 
first  day  of  April,  in  the  year  of  our  Lord  one  thousand  eight 
284 


March  27, 1829.]    OF  PENNSYLVANIA.  255 

[Moser  v.  Libenguth  and  another,  Administrators  of  Libengutli.] 

hundred  and  twenty-two,  without  fraud  or  further  delay,  theu  the 
above  obligation  to  be  void  aud  of  no  effect,  otherwise  to  be  and 
remain  in  full  force  and  virtue. 

"Joseph  Libenguth.     ^Seal.^ 
"Ja(X>b  Libenguth.       (Seal.) 

"  Sealed  and  delivered  in  presence  of 

,  "  William  Mintzer  ^ 

"Jacob  Missimer." 

The  parts  of  the  bond  in  italics  were  written,  and  the  residue 
printed. 

*The  cause  was  tried  on  the  pleas  of  payment  with  r^nnp-i 
leave  to  give  the  special  matters  in  evidence ;  non  est  ^  J 
factum,  and  the  following  plea  : — 

"  That  the  writing  obligatory,  if  any  such  was  sealed  and 
delivered  by  the  said  Jacob  Libenguth,  was  sealed  and  deliv- 
ered jointly  with  one  Joseph  Libenguth,  who  is  still  living,  to 
wit,  at  Montgomery  county,  and  not  by  the  said  Jacob  Liben- 
guth alone." 

The  plaintiff  replied  non  solvit  and  issues,  and,  "That  the 
plaintiff  ought  to  have  his  action,  &c.,  anything  in  the  aforesaid 
plea  notwithstanding ;  and  that  the  said  writing  obligatory  in 
the  declaration  mentioned  was  sealed  and  delivered  by  the  said 
Jacob  Libenguth  jointly  and  severally  with  the  said  Joseph 
Libenguth." 

William  Mintzer,  one  of  the  subscribing  witnesses,  proved  the 
execution  of  the  bond ;  and  that  Jacob  Libenguth  was  the  surety 
of  Joseph  Libenguth  in  the  said  bond. 

Henry  Moser  proved,  that  the  consideration  of  the  said  bond, 
was  the  purchase-money  of  a  certain  house  and  lots  of  ground 
in  Pottsgrove,  purchased  by  the  said  Joseph  Libenguth  from  the 
said  Peter  Moser. 

The  jury,  under  the  direction  of  his  Honour,  found  a  verdict 
for  the  plaintiff,  for  six  hundred  and  fifly-nine  dollars  and  thirty- 
six  cents. 

The  defendants'  counsel,  on  the  same  day,  moved  for  a  new 
trial,  for  which  the  following  reason  was  filed,  viz. 

The  judge  charged  the  jury,  that  the  bond  upon  which  suit  is 
brought,  is  a  joint  and  several  bond,  and  not  a  joint  bond. 

The  motion  for  a  new  trial  was  overruled,  and  the  defendants 
appealed  from  the  decision. 

Rawle,  jun.,  for  the  appellants. — The  only  question  is  whether 
the  bond  is  joint,  or  joint  aud  several.     As  there  are  no  equi- 

285 


256  SUPREME  COURT         [Philadelphm, 

[Moser  v.  Libenguth  and  another,  Administrators  of  Libengutli.] 

table  circumstances  in  the  case,  effect  must  l)e  given  to  it  purely 
as  a  legal  instrument ;  and,  far  as  tlie  courts  have  latterly  gone 
in  construing  bonds  to  be  joint  and  several  rather  than  joint, 
they  have  never  yet  pronounced  an  instrument  like  this,  unat- 
tended by  any  equity,  to  be  several,  even  where  the  parties  have 
not  declare<l  themselves  bound,  as  they  have  done  in  this  case, 
jointly.  The  extent  to  which  they  have  gone,  has  been  to  con- 
sider a  bond  as  several  where  it  might  fairly  be  inferred  from 
circumstances,  that  such  was  the  intention  of  the  parties,  or 
where  the  deceased  obligor  has  received  the  money,  or  been  a 
partner,  or  derived  some  benefit  from  the  loan,  or  some  other 
circumstances  existed,  which  would  make  it  against  equity  to 
exonerate  his  estate.  This  has  been  done  on  the  principle  of 
reforming  the  instrument.  In  Besore  v.  Potter,  12  Serg.  & 
Rawle,  154,  the  instrument  was  precisely  like  this,  except  that 
there  the  obligors  did  not  declare  themselves  to  be  jointly  held. 
Prior  to  that  case,  the  words,  "  we  bind  ourselves,  our  heirs,  ex- 
ecutors, and  administrators,  and  every  of  them,"  had  never  been 
held  to  make  a  bond  several.  An  examination  of  that  case  will 
n^n^^-,  *show  that  it  does  not  entrench  so  much  as  it  might  be 
L  '  -J  imagined,  upon  what  was  considered  the  law.  It  was 
decided  upon  the  equitable  circumstances  of  the  case ;  Judge 
Duncan,  who  delivered  the  opinion  of  the  court,  considering  it  to 
be  a  case  in  which  equity  would  reform  the  instrument,  and  de- 
claring his  opinion  to  be  in  accordance  with  that  of  Chief  Justice 
Marshall,  in  Hunt  v.  Rousmanier,  8  Wheat.  174;  and  though 
be  laid  hold  of  the  words,  and  every  of  them,  as  showing  inten- 
tion, he  admitted  that  some  latitude  must  be  taken  to  give  them 
that  eifect.  It  cannot,  therefore,  be  doubted,  that  if  he  had  been 
sitting  as  a  law  judge  merely,  he  would  have  construed  the  bond 
to  be  joint,  as  it  certainly  would  be  held  in  England.  If  this 
view  of  the  subject  be  correct,  the  bond  in  question  is  a  joint 
bond  independently  of  the  word  "jointly,"  prefixed  to  the  dec- 
laration of  indebtedness.  The  defendants'  intestate  had  re- 
ceived no  benefit  whatever ;  there  was  nothing  in  the  ca^e  to 
create  an  equity  against  him,  and  he  was  therefore  entitled  to 
that  favour,  which  was  always  extended  to  sureties  by  courts  of 
equity.  He  is  boimd  to  the  extent  of  his  bond,  but  no  further. 
It  is  no  argument  to  say  that  the  obligors  intended  to  bind 
themselves  severally,  and  did  not  know  the  difference  between  a 
joint  and  a  joint  and  several  bond.  It  is  enough  to  say,  that 
they  are  supposed  to  know  the  law.  But  there  are  substantial 
reasons  why  a  man  should  consent  to  bind  himself  jointly  with 
another,  and  thus  limit  his  responsibility  to  his  own  life,  and  yet 
refuse  to  enter  intovan  obligation  the  terms  of  which  would  sub- 
286 


March  27, 1S29.']     OF  PENXSYLVANIA.  257 

[Moser  v.  Libengutli  and  another,  Administrators  of  Libenguth.] 

ject  his  representatives  to  lawsuits.    Weaver  i\  Sliryocli,  6  Serg. 
&  Eawle,  262. 

If,  then,  the  intention  of  the  parties  was  not  positively  de- 
clared by  the  use  of  the  word  "jointly,"  the  implication  from 
the  words  "every  of  them,"  would  not  be  strong  enough  to 
make  this  a  joint  bond,  viewing  it  merely  as  a  legal  instrument 
independently  of  equity.  But,  whatever  may  be  the  force  of 
implication,  it  is  never  permitted  to  push  aside  the  express  dec- 
laration of  the  parties ;  and,  as  they  have  said  in  this  instance 
that  they  are  jointly  bound,  the  court  are  not  to  imply,  from 
doubtful  words,  that  they  intended  to  be  bound  severally.  A 
bond  clearly  several  in  its  terms,  has  been  held  joint  by  the  in- 
troduction of  the  word  conjunction.  5  Bac.  Ab.  163,  164.  By 
considering  the  bond  as  joint,  effect  is  given  to  all  its  parts, 
while,  to  treat  it  as  several,  the  word  jointly  must  be  stricken 
out.  The  term  jointly  refers  to  the  responsibility  which  the 
obligors  assume ;  while  the  words,  "  every  of  them,"  may  fairly 
be  construed  to  mean  all  the  executors  of  the  surviving  obligor. 
If  the  word  "jointly  "  had  been  introduced  inadvertently,  there 
might  be  some  weight  in  the  suggestion  that  the  parties  attached 
no  force  to  it,  and  were  not  aware  of  its  effects ;  but  it  is  to  be 
observed  that  it  is  found  in  the  written  part  of  the  bond,  while 
the  words  which  are  relied  upon  as  words  of  severalty  are  in  the 
usual  printed  form.  If,  therefore,  actual  intent  is  to  govern,  tlie 
case  is  with  the  defendants,  so  far  as  intent  can  be  gathered  from 
language. 

*Kittera,  for  the  appellee. — To  pronounce  the  instru-  r^n.-o-i 
ment  on  which  this  suit  is  brought  joint,  it  will  be  neces-  *-  '  -' 
sary  to  overturn  no  less  than  four  decisions,  upon  words  of  pre- 
cisely the  same  import.  Geddis  i'.  Hawk,  10  Serg.  &  Rawle, 
33  ;  Besore  v.  Potter,  12  Serg.  &  Pawle,  154  ;  Moneugh  v.  But- 
ler's Administrators,  cited  in  12  Serg.  &  llawle,  158  ;  Detterer 
V.  Custer,  j\IS.  Case.  The  only  difference  between  these 
cases  and  that  under  consideration  is,  that  here  the  binding  is 
joint  in  express  words ;  but  this  is  nothing  more  than  the  law 
imports  from  the  words,  "we  bind  ourselves,"  which  make  a 
joint  obligation  as  completely  as  any  form  of  words  that  couUl 
be  devised,  and  yet  they  have  been  held  to  be  controlled  by  the 
subsequent  introduction  of  the  words,  "and  every  of  them,"  l)y 
which  a  joint  bond  is  convei'ted  into  a  joint  and  several  one 
The  intention  of  the  parties  to  make  this  a  joint  obligation,  it  is 
impossible  to  doubt.  It  is  almost  always  the  intention  ;  for  no 
unlettered  man  ever  dreams  of  the  distinction  between  such  in- 
struments.    It  was  prepared  by  a  man  who  was  not  a  lawyer, 

287 


258  SUPREME  COURT  [Phikidelphia, 

[Moser  v.  Libenguth  and  another,  Administrators  of  Libenguth.] 

and  wlio  filled  up  a  printed  form,  inadvertently  omitting  to  in- 
troduce the  words  "  and  severally,"  after  the  word  "jointly." 
Judgment  reversed,  and  a  new  trial  awarded. 

Cited  by  Counsel,  2  Wh.  78 ;  4  W.  61 ;  1  W.  &  S.  367 :  12  H.  493 :  4  W.  N. 
C.  164. 

Cited  by  the  Court,  1  Penn.  R.  290. 
Affirmed,  2  R.  430 ;  and  followed,  2  W.  416. 


[Phtladixphia,  March  27, 1829.] 

Stoddart,  for  the  use  of  his  Assignees,  against  Allen  and 
Another,  Assignees  of  Moore,  Myers  &  Co. 

If  an  assignment  be  made  for  the  benefit  of  such  creditors  as  shall  execute 
a  release  within  a  given  time,  one  to  whom  a  debt  is  actually  due,  and  who 
releases  within  the  time,  but  afterwards  takes  up  notes  drawn  and  indorsed  by 
him  for  the  accommodation  of  the  assignor,  is  not  entitled  to  a  dividend  of 
his  estate  upon  the  notes  thus  taken  up. 

Case  for  the  opinion  of  the  court,  a.s  follows : — 

"  John  Stoddart,  and  Moore,  Myers  &  Co.,  were  mercliants, 
and  had  considerable  dealings  together,  in  the  course  of  which, 
they  lent  and  indorsed  notes  for  each  other,  to  a  large  amount. 

"On  the  2lst  February,  1820,  John  Stoddart  made  a  general 
assignment  to  Thomas  Fletcher,  for  the  benefit  of  his  cretlitors ; 
and  on  the  25th  of  the  same  month,  he  executed  another  assign- 
ment of  the  same  nature  to  the  same  person  and  Jacob  Butz, 
(prout  assignment,)  without  stipulating  for  a  release. 

"On  the  7th  of  March,  1820,  Moore,  Myers  &  Co.  executed 
an  assignment  of  the  same  nature,  to  William  Allen  and  Richard 
Rowley,  in  which  assignment  is  a  provision  in  favour  of  certain 
preferred  creditors,  and  also  in  favour  of  general  creditors  who 
shall  within  a  certain  limited  time,  execute  a  release  to  the  said 
Moore,  Myers  &  Co.,  (prout  assignment.) 

r*9"Ql  *"  Moore,  Myers  &  Co.  were  indebted  to  John  Stod- 
L  '  -■  dart,  at  the  time  of  executing  their  assignment,  exclusive 
of  the  accommodation  notes  and  indorsements  existing  between 
them,  in  the  sura  of  twelve  thousand  and  sixty-one  dollars  and 
thirty-four  cents. 

"  The  assignees  of  John  Stoddart  executed  a  release  to  Moore, 
Myers  &  Co.,  within  the  time  prescribed  by  their  assignment, 

"A  number  of  notes,  some  drawn  by  John  Stoddart,  and  in- 
dorsed by  Moore,  Myers  &  Co.,  and  some  drawn  by  Moore, 
Myers  &  Co.,  and  indorsed  by  John  Stoddart,  a  part  of  them 
for  the  use  of  Moore,  Myers  &  Co.,  and  a  part  of  them  for  the 
288 


J/arc/i27,1829.]    OF   PENNSYLVANIA.  2:3 

[Stpddart,  for  the  use  of  his  Aasignees,  v.  Allen  and  another,  Assignees  of 
Moore,  Myers  &  (^o.] 

use  of  John  Stoddart,  were  outstanding  in  the  hands  of  third 
persons,  at  the  time  when  Moore,  Myers  &  Co.  executed  their 
assignment. 

"  The  notes  specified  in  the  scliedule  A.  hereto  annexed,  were 
in  the  hands  of  tiie  holders  therein  mentioned ;  were  originally 
given  for  the  use  of  Moore,  Myers  &  Co. ;  the  said  holders  did 
not  execute  the  release  to  Moore,  Myers  &  Co.,  but  resorted  to 
the  estate  of  John  Stoddart,  and  these  notes  were,  after  the 
time  for  executing  the  release  to  ]\Ioore,  Myers  &  Co.  had  ex- 
pired, under  a  general  arrangement  between  the  assignees  of 
John  Stoddart,  and  the  creditors  of  John  Stoddart,  paid  by  the 
said  assignees  with  the  estate  of  the  said  John  Stoddart,  assigned 
to  them  as  aforesaid,  distributed  among  the  creditors,  (prout 
arrangement,)  and  are  the  notes  on  which  the  assignees  of  Stod- 
dart claim  a  dividend  from  the  assignees  of  Moore,  jNIyers  & 
Co.,  to  recover  which,  this  suit  is  brought. 

"The  notes  specified  in  the  schedule  B.  are  holden  by  the 
banks  and  persons  therein  mentioned;  were  originally  given 
for  the  use  of  Moore,  Myers  &  Co. ;  the  holders  executed  the 
release  to  Moore,  Myers  &  Co. ;  have  claimed  on  the  estate  of 
John  Stoddart ;  have  received  from  his  assignees  a  dividend  of 
ten  per  cent,  and  are  entitled  to  the  benefits  of  such  further 
dividend  as  may  be  made. 

"  The  notes  specified  in  schedule  C.  are  holden  by  the 
Farmers'  and  Mechanics'  Bank ;  were  originally  given  for  the 
use  of  John  Stoddart ;  the  holders  executed  the  release  of 
Moore,  jNlyers  &  Co.,  and  have  receival  from  their  assignees  a 
dividend  of  twelve  and  a  half  per  cent.  They  have  also  re- 
ceived from  the  a.ssignees  of  John  Stoddart  a  dividend  of  ten 
per  cent. 

"  The  notes  specified  in  schedule  D.  are  holden  by  the  banks 
therein  mentioned ;  were  originally  issued  for  the  use  of  John 
Stoddart ;  the  holders  have  not  executed  the  release  of  Moore, 
Myers  &  Co.,  and  have  not  received  and  are  not  entitled  to  re- 
ceive any  dividend  from  their  estate.  They  have  received  a 
dividend  of  ten  per  cent,  from  the  assignees  of  John  Stoddart. 

"  The  defendants,  under  the  assignment,  have  declared  a 
dividend  of  twelve  and  a  half  per  cent. 

"  On  these  facts  the  following  questions  arise  for  the  decision 
of  the  court : 

*1.  "Whether  the  assignees  of  John  Stoddart  are  r^oprj-] 
entitled  to  a  dividend  from  the  estate  of  Moore,  Myers  •-  J 
&  Co.,  on  the  notes  mentioned  in  schedule  A  ? 

2.  "  If  entitled,  whether  such  dividend  is  to  be  on  the  amount 
of  the  notes  or  any  other  amount  ?     If  the  court  shall  be  of 

VOL.  I.— 19  289 


260  SUPIIEME   COURT  [Philadelphia, 

[Stoddart,  for  the  use  of  his  Assignees,  v.  Allen  and  another,  Assigneefr'of 
Moore,  Myers  &  Co.] 

opinion  in  favour  of  the  plaintiffs,  judgment  to  be  entered  for 
the  plaintiffs  ;  the  amount  to  be  ascertained  by  the  court,  or  by 
reference  under  its  direction." 


Schedule  A. 

"The  State  Bank  at  Camden,  (N.  J.,)  held  the  following 
notes : — 

One,  dated  the  5th  of  February,  1 820,  drawn  by 
Moore,  Myers  &  Co.,  in  favour  of,  and  indorsed  by 
John  Stoddart,  at  sixty  days,  for $500.00 

One,  dated  the  15th  of  January,  1820,  drawn  by 
John  Stoddart,  in  favour  of,  and  indorsed  by  Moore, 
Myers  &  Co.,  at  sixty  days,  for 350.00 

One,  dated  the  24th  of  December,  1819,  drawn 
and  indorsed  as  the  last,  at  ninety  days,  for    .    .    .        2,651.37 

$3,501.37 
"  The  Bank  of  Pennsylvania  held  the  following : — 
One,  dated  the  22d  of  February,  1820,  drawn  by 
Moore,  Myers  &  Co.,  indorsed  by  John  Stoddart,  at 

sixty  days, ^ $1,350.00 

One,  dated  the  16th  of  February,  1820,  same 

drawers  and  indorser,  at  sixty  days, 900.00 

One,  dated  the  2d  of  February,  1820,  drawn  by 
John  Stoddart,  indorsed  by  Moore,  Myers  &  Co., 

at  sixty  days, 600.00 

2,850.00 

$6,351.37 

"  The  Commercial  Bank  of  Pennsylvania  held  the  following : 
One  note,  dated  the  14th  of  January,  1820,  drawn 
by  John  Stoddart,  indorsed  by  Moore,  Myers  &  Co., 

at  sixty  days,      .•    •    •    •        2,000.00 

"  J.  and  W.  Lippincott  held  the  following  : — 
One  note,  dated  the  15th  of  September,  1819, 
drawn  by  Moore,  Myers  &  Co.,  indorsed  by  John 

Stoddart,  at  six  months, 2,943.06 

One  note,  dated  the  5th  of  November,  1819,  same 

drawer  and  indorsers,  at  five  months, 466.90 

3,409.96 

$11,761.33 
"All  for  the  use  of  Moore,  Myers  &  Co." 
290 


3/arcA  27, 1829.]     OF  PENNSYLVANIA.  261 

[Stoddart,  for  the  use  of  his  Assignees,  r.  Allen  and  another,  Assignees  of 
Moore,  Myers  &  Co.] 

♦Schedule  B.  [*261] 

"  The  State  Bank  at  Camden,  a  note  for  ...    .  $500.00 
The  United  States  Bank,  three  notes,  amount- 
ing to   2,000.00 

The  Bank  of  the  Northern  Liberties,  two  notes, 

amounting  to 850.00 

Lambert,  a  note, .• 896.50 

Henry  Becket,  a  note  prosecuted  to  judgment,  3,199.03 

$7,445.53 
Schedule  C. 

*'  The  Farmers'  and  Mechanics'  Bank,  two  notes, 

amounting  to $3,287.50 

Schedule  D. 

**  The  Camden  Bank,  a  note  amounting  to  .    .    ,  $1,545.50 

The  United  States  Bank,  notes  amounting  to  .  3,186.70 


$4,731.20 


The  assignment  of  Moore,  Myers  &  Co.,  after  the  usual  words 
of  transfer,  and  after  sundry  preferences,  contained  the  follow- 
ing clause : 

"  After  payment  of  the  herein  before  mentioned  debts,  the 
amount  of  moneys  remaining  in  the  hands  of  the  said  William 
Allen  and  Richard  Rowley,  shall  be  paid  unto  and  among  such 
of  the  creditors  of  the  said  firm,  (or  of  the  individuals  com- 
posing the  firm  of  Moore,  Myers  &  Co.,)  residents  of  the  United 
States,  who  shall  execute  a  release  bearing  even  date  herewith 
(deposited  with  the  said  assignees),  within  sixty  days  from  the 
date  thereof,  and  also  unto  and  among  such  foreign  creditors, 
or  those  residing  out  of  the  United  States,  as  shall  execute  the 
said  release  within  six  calendar  months  from  the  date  hereof,  in 
fair  and  ratable  proportions  and  dividends,  of  and  upon  their 
respective  debts  and  claims,  so  far  as  the  said  residue  of  the 
estate  of  Moore,  Myers  &  Co.,  and  their  estates  individually, 
will  go  to  discharge  and  satisfy  the  same." 

It  was  contended  by  Olauncey  and  Blnney,  for  the  plaintiff, 
that  the  assignees  of  Stoddart  having  satisfied  out  of  his  estate, 
the  holders  of  the  notes  in  schedule  A.,  although  after  the  time 
stipulated  for  the  execution  of  the  release,  and  although  the 

291 


261  SUPREME  COURT  [Philadelphia, 

[Stoddart,  for  the  use  of  his  Assignees,  v.  Allen  and  another,  Assignees  of 
Moore,  Myers  &  Co.] 

holders  of  the  notes  had  not  executed  it,  were  entitled,  by  a  fair 
coustnietion  of  the  assignment,  to  a  dividend  on  them. 

The  great  object  of  the  assignment  was  to  provide  for  the 
payment  of  all  the  debts  of  the  assignors.  The  notes  were  in- 
cluded as  debts,  not  the  holders  of  the  notes  as  creditors.  It 
was  no  matter  in  whose  hands  the  notes  lay.  The  names  of 
r*9fi9l  ^^^  payees  were  only  *introdnced  to  descril>e  the  class 
•-  ^J  of  debts,  not  to  fix  on  the  persons  who  were  to  receive 
the  dividends. 

tTod,  J. — What  is  the  rule  in  cases  of  bankruptcy  ?] 
Jnder  the  English  statutes  of  bajikruptcy,  that  is,  if  Moore, 
Myers  &  Co.,  had  committed  an  act  of  bankrupcy,  the  plain- 
tiffs would  be  entitled  to  a  dividend.  Prior  to  7  Geo.  1,  a  note  of 
hand  could  not  be  proved  before  it  became  due.  49  Geo.  3,  let 
in  the  surety.  6  Geo.  4,  adopts  the  same  principle,  and  goes 
further,  letting  in  contingent  debts  generally.  The  term  cred- 
itor, in  this  assignment,  means  any  person  who  has  paid  or  is 
liable  to  pay ;  though  the  dividend  cannot  be  claimed  till  after 
payment  is  made. 

They  cited,  Heilner  v.  Imbree,  6  Serg.  &  Rawle,  401 ;  Lee  v. 
Rapp,  Mosely,  318. 

D.  P.  Brovm  and  Rawle,  for  the  defendants,  observed,  that 
the  holders  of  these  notes  having  by  their  omission  to  execute 
a  release  within  the  limited  time,  clearly  forfeited  their  right 
to  the  benefit  of  the  assignment,  could  not,  by  the  arrangement 
made  with  the  assignees  of  Stoddart,  convey  to  them  any  right 
to  a  dividend.  The  case  would  have  been  different  if  the 
arrangement  between  those  assignees  and  the  holders,  had  been 
made  within  the  sixty  days.  The  release  executed  by  them 
would  have  covered  the  notes,  of  which,  by  that  arrangement, 
they  had  become  the  proprietors ;  but  as  the  case  stands,  they 
have  not  the  shadow  of  a  right.  They  cited  Howis  v.  Wiggins, 
4  Durnf.  &  East,  714;  Cowley  v.  Dunlop,  7  Durnf.  &  East,  565; 
Buckler  v.  Buttivant,  3  Ea.^,  72 ;  Ex  parte  Walker,  4  Vesey,  373 ; 
Ex  parte  Earle,  5  Ves.  833. 

The  opinion  of  the  court  was  delivered  by 

Smith,  J. — It  appears,  from  the  case  submitted  to  this  court 
for  their  opinion,  that  John  Stoddart,  and  the  firm  of  Moore, 
Myers  &  Co.,  had  considerable  dealings  together,  and  that  they 
were  desirous  of  mutual  accommodation,  which  was  afforded  by 
lending  to,  and  indorsing  notes  for  each  other,  and  which 
proved,  as  is  often  the  case,  ruinous  to  both  parties.  Hence, 
it  became  necessary  for  them  to  execute  assignments  for  the 
292 


J/arcA  27,  1829.]     OF   PENNSYLVANIA.  262 

[Stoddart,  for  the  use  of  his  Assignees,  v.  Allen  and  another,  Assignees  of 
Moore,  Myers  &  Co.] 

benefit  of  their  creditors.  The  former,  on  the  21st  day  of  Feb- 
ruary, 1820,  made  a  general  assignment  to  Thomas  Fletcher, 
and  on  the  25th  day  of  the  same  month,  executed  another  of  the 
same  nature  to  the  same  person,  and  to  Jacob  Butz.  On  the 
7th  day  of  March,  1820,  the  latter  executed  an  assignment  to 
William  Allen  and  Richard  Rowley,  for  a  similar  purpose,  con- 
taining, however,  a  provision,  in  favour  of  certain  creditors, 
whom  they  preferred,  and  a  further  provision  in  favour  of 
general  creditors,  who  should  within  sixty  days  execute  a 
release  to  them.  At  the  time  of  executing  this  assign- 
ment, Moore,  Myers  &  Co.,  were  indebted  to  John  Stoddart., 
*in  the  sum  of  twelve  thousand  and  sixty-one  dollars  r^o/^oi 
and  thirty-eight  cents,  exclusively  of  certain  accom-  L  '  ■' 
niodation  notes,  and  indorsements,  existing  between  them.  A 
release,  as  stipulated  by  Moore,  Myers  &  Co.,  in  their  assign- 
ment, was  executed  to  them  by  the  assignees  of  John  Stoddart, 
within  the  time  prescribed.  When  Moore,  Myers  &  Co.,  ex- 
ecuted their  assignment,  there  were  outstanding,  in  the  hands  of 
third  })ersons,  a  number  of  notes,  some  of  them  drawn  by  John 
Sto<ldart,  and  indorsed  by  Moore,  Myers  &  Co. ;  and  some  drawn 
by  Moore,  Myers  &  Co.,  and  indorsed  by  John  Stoddart,  a  part 
of  them  for  the  use  of  the  former,  and  a  part  for  the  use  of  the 
latter.  The  notes  mentioned  in  the  case  stated,  marked  A.,  were 
in  the  hands  of  the  holders  there  mentioned,  and  were  for  the 
use  of  Moore,  Myers  &  Co.  These  holders  did  not  execute  a 
release  to  them,  but  thought  proper  to  resort  to  the  estate  of 
John  Stoddart ;  and  after  the  time  for  executing  the  release  had 
expired,  those  notes  were  distributed  among  the  creditors  under 
an  arrangement  between  John  Stoddart's  assignees  and  his  cred- 
itors, and  paid  by  the  said  assignees  with  John  Stoddart's 
estate.  They  are  the  notes,  on  which  the  assignees  of  John 
Stoddart  claim  a  dividend,  and  for  which  this  suit  is  brought 
against  the  assignees  of  Moore,  Myers  &  Co.  The  question  then 
is,  can  the  assignees  of  John  Stoddart  recover  a  dividend  from 
the  estate  of  Moore,  Myers  &  Co.,  on  the  above  mentioned  notes? 
A  debtor,  may,  by  an  assignment  to  others,  dispose  of  his  estate 
in  trust,  for  the  use  and  benefit  of  his  creditors ;  in  such  an 
assignment,  some  creditors  may  be,  and  often  are  preferred, 
whilst  others  are  postponed  ;  and,  however  hard  this  may  appear 
to  be,  yet  the  law  is  so ;  lex  ita  scripta,  and  we  must  take  it  as 
w^e  find  it.  j^ssignors  too,  like  the  present,  generally  consider 
drawers  and  indorsers  of  accommodation  paper,  entitled  to  a  pref- 
erence ;  it  is  considered  as  due,  under  an  honorary  obligation, 
and  is  almost  always  given.  The  terms  under  which  the  prefer- 
ence is  to  be  received,  are  prescribed  by  the  assignor,  as  the  law- 

293 


2G3  SUPREME  COURT  [Philadefphia, 

[Stoddart,  for  the  use  of  his  Assignees,  r.  Allen  and  another,  Assignees  of 
Moore,  Myers  &  Co.] 

giver,  in  his  deed  of  assignment  and  a  compliance  with  tliem,  on 
tiie  part  of  him,  who  is  to  liave  the  benefit  of  the  preference,  is 
required.  These  principles  are  not  controverted.  Moore,  Myers 
&  Co.,  in  their  assignment  of  the  7th  day  of  March,  1820,  pre- 
ferred certain  creditors,  and  took  care  besides,  to  prefer  general 
creditors,  who  should,  within  a  certain  limited  time,  (sixty  days,) 
execute  a  release  to  them  ;  directing  that  whoever  complied  with 
this  stipulation,  should  be  entitled  to  the  benefit  of  the  fund 
allotted  to  such  general  creditors ;  but  that  such  of  them  as  did 
not  execute  the  release  required  by  the  assignment,  should  not 
be  entitled  to  any  part  thereof,  and  in  short,  should  not  be 
"  Creditors  "  of  Moore,  Myers  &  Co.,  as  to  that  particular  fund. 
The  holders  of  the  above-mentioned  notes,  were  general  credi- 
tors of  Moore,  Myers  &  Co. ;  they  did  not,  however,  execute 
r*9fi4."l  *^^^  release  to  them  as  stipulated  in  their  assignment, 
L  J  but,  resorted  to  the  assignees  of  John  Stoddart,  or  his 
estate,  for  payment  of  the  notes.  Nor  was  this  all :  after  the 
time  for  executing  the  release  to  Moore,  Myers  &  Co.  had  ex- 
pired, these  same  notes,  under  a  general  arrangement,  betAveen 
the  assignees  of  John  Stoddart,  and  the  creditors  of  John  Stod- 
dart, were  paid  by  his  assignees  with  the  estate  assigned  to 
them,  and  distributed  among  the  creditors  of  John  Stoddart. 
If,  then,  the  assignees  should  be  permitted  to  recover  in  this 
suit,  it  would  be  for  the  use  of  the  creditors  of  John  Stoddart, 
and,  as  I  think,  give  rise  to  a  double  dividend.  Be  this,  how- 
ever, as  it  may,  it  is  evident  to  my  mind,  that  under  the  express 
terms  of  the  assignment,  the  notes  were  not  a  debt,  for  which 
the  plaintiffs  could  claim  a  dividend  by  virtue  of  the  assignment, 
nor  could  the  holders  of  them,  although  creditors  of  Moore, 
Myers  &  Co.,  because  they  had  not  executed  the  release  re- 
quired ;  and,  not  complying  with  the  terms  of  the  assignment, 
had  not  entitled  themselves  to  the  benefit  arising  from  this  par- 
ticular fund.  In  6  Serg.  &  Rawle,  401,  it  was  held,  that  the  pre- 
ference is  not  to  the  creditor,  but  the  debt.  Here  it  is  reason- 
able to  infer,  that  no  debt  was  intended  to  be  preferred,  but  such 
as  the  assignor  should  be  discharged  from.  It  would  be  unrea- 
sonable to  give  any  one  the  benefit  of  the  assignment,  who  could 
not  secure  him  from  liability  to  the  notes  in  the  hands  of  the 
holder.  The  consideration  of  the  assignment,  was  personal 
exemption  from  the  debt,  and  the  assignor  would  not  have  the 
benefit  of  this  consideration  if  the  notes  could  be  brought  against 
him  by  any  one.  The  plaintiff  alleges,  that  the  holder  could  not 
release  the  assignor,  without  releasing  him  (the  plaintiff,)  at  the 
same  time.  This  is  a  strange  objection  coming  from  him,  who 
could  have  obviated  that  consequence,  by  an  arrangement  with 
294 


Mnrch27,1820.']    OF   PEXXSYLYANIA.  264 

[Stoddart,  for  the  use  of  his  Assignees,  v,  Allen  and  another,  Assignees  of 
Moore,  Myers  &  Co.] 

the  holder.     Even  if  he  could  not,  it  does  not  follow  that  he 
should  be  let  in  on  the  fund.     The  debtor  had  a  right  to  make 
his  own  terms ;  and  if  the  plaintiff  was  not  in  a  situation  to  com- 
ply with  those  terms,  it  is  his  misfortune ;  but  it  gives  him  no 
ground  to  complain.     It  is  no  doubt  the  interest  of  the  debtor 
now,  that  the  plaintiff  should  come  in  on  the  fund.     But  it  was 
not  so  at  the  time  of  the  release,  the  period  when  the  rights  of 
the  parties  vested.    It  certainly  was  not,  because  the  debtor  was 
then  exposed  to  the  notes  in  the  hands  of  the  holders ;  and  the 
plaintiff  having  since  taken  them  up,  can  actpiire  no  right,  which 
he  had  not  then.     The  assignees  of  John  Stoddart  stand  in  no 
better  situation  than  the  holders,  from  whom  they  have  derived 
their  title,  and  who  cannot,  by  making  over  to  others  such  notes, 
thereby  impart  to  them  a  benefit  to  which  they  themselves  were 
not  entitled.     These  notes,  on  the  7th  day  of  May,  1820,  when 
the  sixty  days  had  expired,  being  the  property  of  certain  hold- 
ers, if  the  assignees,  to  whom  they  were  delivered  by  the  several 
holders,  were  permitted  *to   receive  a  dividend,  their  r^o/^c-i 
situation  would  be  better  than  that  of  the  holders,  if  •-         ^ 
they  had  not  parted  with  the  notes.     Such  advantages  the  law 
does  not  recognize.    The  holders  having  resorted  to  another  fund 
for  payment,  cannot,  after  this,  transfer  the  notes  to  one,  who, 
as  a  general  creditor,  had  complied  with  the  terms  of  the  assign- 
ment, by  executing  a  release  for  his  own  debts,  so  as  to  enable 
him  under  this  release,  in  which  the  debt  created  by  these  notes 
was  not  embraced,  to  come  in,  and  claim  a  part  of  a  fund  for 
them  which  the  holders  would  have  had  no   right  to  claim  or 
demand.    The  right  to  receive  a  dividend  cannot  be  made  better 
by  negotiating  the  notes  after  the  sixty  days  mentioned  in  the 
assignment  had  expired. 

In  this  assignment,  we  have  the  words  "  creditors,"  and  it  is 
contended,  that  indorsers  for  their  indorsement,  or  drawers  for 
Stoddart,  are  creditors  within  the  true  meaning  of  the  assign- 
ment ;  and  this,  whether  they  were  compelled  to  pay  the  notes 
or  not.  It  would  be  so,  if  Stoddart  had  held  the  notes  at  the 
time  of  the  assignment,  or  had  then  received  them  for  a  valuable 
consideration  ;  he  would,  in  that  case,  have  stood  in  the  situation 
of  a  creditor,  and  would  have  been  entitled  to  receive  a  dividend 
of  the  notes ;  but  at  the  time  of  the  assignment,  or  at  the  time 
of  the  signing  of  the  release,  Moore,  Myers  &  Co.  were  not  in- 
debted to  the  estate  of  John  Stoddart,  or  his  assigns;  on  these 
notes — no  debt  existed  then,  for  his  assignees  obtained  the  notes 
after  the  sixty  days ;  and  upon  what  principle  they  could  come 
in  as  creditors  under  the  assignment,  and  claim  a  dividend,  I 
am  really  at  a  loss  to  conceive.     No  debt  was  existing  at  this 

295 


265  SUPREME   COURT  [Philadelphia, 

fStoddart,  for  the  use  of  his  Assignees,  v.  Allen  and  another,  Assignees  of 
Moore,  Myers  &  fJo.] 

time,  by  or  from  either  party, — no  cause  of  action  then  existed 
by  Stotldart's  assignees  against  Moore,  Myers  &  Co. :  their 
cause  of  action  arose  after  tlie  assignment,  and  arose  by  their 
taking  up  indorsed  paper  of  a  debtor,  after  they  had  executed 
a  release  of  all  actions  and  all  causes  of  action  existing  on  the 
7th  day  of  March,  1820;  not  of  causes  of  action,  which  should 
exist  thereafter,  as  on  the  7th  day  of  May,  1820.  An  indorser 
or  transferee,  who  did  not  entitle  himself  to  the  notes,  by  actually 
paying  for  them  before  the  assignment,  cannot  be  a  creditor 
within  its  terms.  I  believe  no  instance  can  be  produced,  where 
an  indorser  of  a  note  was  ever  entitled  to  sustain  a  suit,  when 
no  payment  was  made  by  him.  In  the  case  of  a  bankrupt,  an 
indorser  being  in  the  nature  of  a  surety,  cannot  prove  a  debt 
under  the  commission,  unless  he  has  actually  paid  the  money 
before  the  bankruptcy.     1  Hen.  Blacks.  Rep.  641. 

I  apprehend  the  remedy  which  the  plaintiifs  have  upon  these 
notes,  is  against  Moore,  Myers  &  Co.,  or  John  Stoddart,  per- 
sonally ;  but  to  the  fund  in  the  hands  of  the  assignees  of  Moore, 
Myers  &  Co.,  they  have  not  entitled  themselves.  My  answer 
to  the  proposed  question,  therefore,  is,  that  the  assignees  of  John 
r*9rfiT  *Stoddart  are  not  entitled  to  a  dividend  from  the  estate 
■-  -■  of  Moore,  Myers  &  Co.,  on  the  notes,  which  were  taken 
up  by  them,  after  the  time  of  the  assignment  and  release. 
Judgment  is  therefore  to  be  entered  for  the  defendants. 

Judgment  for  the  defendants. 

Cited  by  Counsel,  3  Wh.  536 ;  6  Wh.  262 ;  8  Wright,  227. 


[Philadelphia,  Mabch  27, 1829.] 
Case  of  BonealFs  Appeal. 

Where,  under  the  circumstances,  it  was  manifestly  for  the  benefit  of  the 
ward,  at  the  time,  to  convert  his  personal  into  real  estate,  and  even  to  expend 
money  in  the  improvement  of  the  real  estate,  a  guardian  was  held  to  be  justi- 
fiable in  so  doing,  although  subsequent  and  unexpected  events  rendered  the 
measure  injurious  to  the  ward. 

« 

Appeal  from  the  decree  of  the  Orphans'  Court  of  the  city  and 
county  of  Philculelphia,  on  the  exceptions  filed  to  the  rej>ort  of 
the  auditor  on  the  account  of  John  Bonsall,  guardian  of  Hannah 
Hughes. 

The  auditor  having  reported  a  balance  of  one  thousand  five 
hundred  and  thirty-seven  dollars  and  thirty  and  a  half  cents 
against  the  guardian^  he  filed  the  following  exceptions  to  the 
report : 

296 


March  27, 1829.]     OF   PENNSYLVANIA.  266 

[Case  of  Bonsall's  Appeal.] 

Exception  1st. — That  the  auditor  has  charged  the  said  guar- 
dian with  the  sum  of  five  hundred  and  ninety  dollars  and  ninety 
cents,  (less  one  hundred  and  ninety-six  dollars  and  ninety-seven 
cents,  set  apart  as  the  proportion  of  dower,  payable  to  the  widow 
of  Thomas  Hughes,)  as  the  amount  of  moneys  payable  to  the 
ward  the  10th  of  May,  1819,  by  James  Hutchinson  and  Edward 
B.  Hughes,  as  her  proportion  of  the  purchase-money  of  a  farm, 
in  Exeter^  Berks  county,  in  which  she  was  interested  ;  in  lieu  of 
which  amount,  he  accepted  an  interest  in  the  land  of  one-third 
of  one  thousand  seven  imndred  and  seventy-two  dollars  and 
seventy-two  cents.  Whereas,  if  the  guardian  be  at  all  charge- 
able with  the  purchase-money  of  the  said  farm,  the  liability 
cannot  exceed  three  hundred  and  ninety-three  dollars  and  ninety- 
three  cents,  (less  one  hundred  and  ninety-six  dollars  and  ninety- 
seven  cents,)  the  interest  of  the  ward  being  one-third  of  one-third, 
and  not  one-third  of  one-half,  as  was  supposed  and  reported  by 
the  auditor,  making  a  diiference  of  one  hundred  and  ninety-six 
dollars  and  ninety-seven  cents. 

Exception  2d. — That  the  auditor  has  erred  in  charging  the 
said  guardian  with  the  interest  of  the  said  ward  in  the  purchase- 
money  of  the  said  farm,  the  same  having  been  purchased  by  the 
said  guardian  and  the  children  of  Thomas  Hughes,  who  were  of 
age ;  (to  wit,  the  said  James  Hutchinson  and  wife  and  Edward  B. 
Hughes,)  *to  preveut  a  sacrifice  and  loss,  and  the  same  r^o/^Y-i 
having  always  been  held  in  good  faith,  as  the  property  L  -• 
of  the  said  ward  and  the  other  children  of  the  said  Thomas 
Hughes,  making  an  erroneous  charge  of  three  hundred  and 
ninety-three  dollars  and  ninety-three  cents. 

Exception  Sd. — That  the  auditor  has  erred  in  omitting  to 
credit  the  said  guardian  with  several  sums  of  money,  by  him 
disbursed  in  erecting  a  stone  dwelling-house  on  the  estate  in 
Exeter,  purchased  as  aforesaid,  and  belonging  in  part  to  the 
said  ward,  and  amounting  together  to  two  hundred  and  seven- 
teen dollars  and  ninety-six  cents. 

The  facts  upon  which  these  exceptions  were  founded  are  fully 
stated  in  the  following — 

Decree  of  the  Court. — "  The  exceptions  of  the  guardian  to 
the  report  of  the  auditor,  in  this  case,  who  has  reported  a 
balance  as  due  the  ward,  of  one  thousand  five  hundred  and 
thirty-seven  dollars  and  thirty  and  a  half  cents,  will  be  better 
understood  by  referring  to  the  leading  facts  connected  with  the 
objected  items  of  debit.  The  accountant  was  guardian  of 
Samuel,  Thomas,  and  Hannah  Hughes,  minor  children  of 
Thomas  Hughes,  deceased.  Thomas  Hughes  died  intestate, 
leaving  five  children,  to  wit :  Edward  B.  Hughes  and  Jane 
Hutchinson,  wife  of  James  Hutchinson,  and  the  three  wards  of 

297 


267  SUPREME  COURT  [Philadelphia, 

[Caae  of  Bonsall's  Appeal.] 

the  accountant.  Among  other  estate,  the  decedent  was  the 
owner  of  a  farm  in  Berks  county.  This  farm  was,  upon  tlie  ap- 
l)lication  of  Samuel  Lightf<K)t  and  John  Evans,  his  administra- 
tors, ordered  to  be  sold  by  the  Orphans'  Court  of  Berks  county, 
and  was  purchased  by  Edward  B.  Hughes  and  John  Hutchinson, 
for  three  thousand  five  hundred  and  forty-five  dollars  and  forty 
cents,  being  at  the  rate  of  forty-eight  dollars  per  acre.  On  the 
first  of  April,  1810,  a  deed  was  executed  by  the  administrators, 
to  Hughes  and  Hutchinson.  On  the  26th  of  May,  181 9,  Hughes 
and  Hutchinson  and  wife  conveyed  one  moiety  of  this  farm  to 
John  Bonsall,  for  the  consideration  of  one  thousand  seven  hun- 
dred and  seventy-two  dollars  and  seventy-two  cents.  The  deed 
to  Bonsall  is  absolute  on  the  face  of  it ;  no  trust  of  any  kind 
appearing  in  it.  The  evidence  in  the  cause,  however,  shows  that 
the  farm  had  been  twice  exposed  to  sale  by  the  administrators ; 
once  when  ninety-nine  dollars  per  acre  were  bid  for  it,  which 
they  refused  to  accept ;  and  a  second  time,  when  it  was  pur- 
chased by  Hughes  and  Hutcliinson.  At  the  time  of  the  pur- 
chase, an  understanding,  they  say,  existed  between  them  and  the 
administrators,  that  John  Bonsall,  the  guardian  of  the  other 
children,  should  have  the  opportunity  of  uniting  in  the  purchase, 
which  was  considered  advantageous.  A  proposal  to  that  effect 
was  made  to  Mr.  Bonsall,  who  acceded  to  it,  and  the  deed  for 
the  moiety  already  alluded  to,  was  executed  to  him.  No  money 
was  actually  paid  by  the  guardian  upon  this  purchase ;  his  part 
of  the  purchase-money  being  satisfied  by  receipts  to  the  adminis- 
r*9fiKl  t^^^ors  on  account  of  his  wards,  the  administrators  *hav- 
■-  -■  ing  originally  received  from  Hughes  and  Hutchinson  a 
mortgage  for  the  purchase-money.  No  sufficient  dwelling-house 
being  upon  the  premises,  Hughes,  Hutchinson,  and  the  guardian 
united  in  erecting  one  at  a  joint  expense  of  one  thousand  two 
hundred  and  ninety-three  dollars.  The  guardian's  half  of  this 
expense  was  paid  out  of  the  moneys  of  his  wards.  This  pur- 
chase proved  a  most  unfortunate  speculation.  Edward  B. 
Hughes,  after  residing  on  the  farm  for  four  years,  paying  no 
other  rent  than  the  taxes  and  one  outstanding  dower  of  sixty- 
six  dollars  per  annum,  to  which  the  property  was  subject,  left  it, 
finding,  as  he  said,  "  he  could  make  nothing  there."  He  has 
been  succeeded  by  a  tenant  who  occupies  the  farm  at  the  same 
rate,  but  whether  with  the  same  prospect,  does  not  aj)pear.  The 
depreciation  in  the  value  of  the  property  is  attributed  to  the 
sickness  and  mortality  that,  after  the  purchase,  devastated  the 
neighbourhood.  The  auditor,  in  settling  and  adjusting  the 
accounts  of  eTohn  Bonsall  as  guardian  of  Hannah  Hughes,  has 
rejected  his  claim  for  a  credit  of  her  portion  of  this  ])urchase 
and  the  expenses  of  the  improvements  and  charged  him  with 
298 


ifarcA  27, 1829.]     OF  PENNSYLVANIA.  268 

[Case  of  Bonsall's  Appeal.] 

one-third  of  one-half  the  purchase-money  of  the  farm.  The 
exceptions  of  the  guardian  complain,  first,  that  he  is  not 
chargeable  with  the  moneys  invested  in  the  farm  and  improve- 
ments ;  secondly,  that  if  he  is  so,  he  can  only  be  charged  with 
one-third  of  one-third  of  the  purchase-money;  that  being,  as  he 
alleges,  all  Hannah  Hughes'  interest  in  it,  and  not  one-third  of 
one-half  the  proportion  charged  by  the  auditor. 

"  The  first  branch  of  these  exceptions  brings  up  the  question 
as  to  the  right  of  a  guardian  to  invest  the  personal  estate  of  his 
ward,  in  the  purchase  and  improvement  of  real  property.  The 
argument  for  the  guardian  went  upon  the  broad  ground  that 
this  was  a  question  of  bona  fides,  and  that  if  the  court  should 
be  satisfied  that  the  purchase  was  made  under  an  honest  con- 
viction that  it  was  for  the  advantage  of  the  ward,  and  with  the 
exercise  of  that  degree  of  prudence  which  a  judicious  man  would 
employ  in  the  conduct  of  his  own  affairs,  the  ward  must  accept 
the  land.  This  would,  indeed,  be  the  introduction  of  a  novel 
aiid  a  most  dangerous  principle  in  the  laws  governing  the  im- 
portant relation  of  guardian  and  ward — a  principle  at  variance 
with  the  policy  of  our  positive  institutions,  and  calculated  to 
extend  a  discretionary  authority  to  guardians,  which  sooner  or 
later  would  produce  the  most  disastrous  effects.  But,  whether 
we  consider  the  question  with  reference  to  our  peculiar  system, 
or  the  general  principled  of  law,  independent  of  statutory  en- 
actments, the  conclusion  must  be  against  the  guardian.  Our 
lawgivers  have'  exhibited  a  peculiar  anxiety  in  guarding  the 
property  of  minors  against  the  fraud  or  negligence  of  those 
whose  duty  it  is  'to  take  care  of  their  persons  and  estates.' 
By  the  act  of  assembly,  which  constituted  this  court,  passed  as 
early  as  1713,  guardians  are  authorized  '  to  put  out  their 
minors'  money  to  interest,  *upon  such  security  as  the  ri:c)fq-\ 
court  might  allow  of.'  If  the  security  is  taken  bona  ^  ^ 
fide,  and  without  fraud,  and  should  prove  insufficient,  the  loss 
is  the  minor's.  But,  even  with  this  guarded  authority,  it  is 
required  'that  the  day  of  payment  of  the  money  put  out  at 
interest,  should  not  exceed  twelve  months  from  the  date  of  the 
security  given.'  This  power  has  been  extended  by  the  act  of 
1824,  which  empowers  guardians,  with  the  approbation  of  this 
court,  to  invest  the  funds  of  their  wards,  in  tlie  stock  or  debt  of 
the  United  States,  the  State  of  Pennsylvania,  or  city  of  Pliila- 
delphia,  or  in  real  securities.  In  the  sale  or  mortgage  of  the 
real  estate  of  a  minor,  for  his  maintenance  and  education,  equal 
caution  is  exercised.  For  either  purpose,  the  consent  of  tliis 
court  must  be  first  obtained ;  and  when  effected,  before  the 
guardian  can  execute  either  deed  or  mortgage,  he  must  give 
security  to  the  satisfaction  of  the  court,  for  the  faithful  appro- 

299 


269  SUPREME  OOUET  [Philadelphia, 

[Case  of  Bonsall's  Appeal.] 

priation  of  the  funds  so  obtained.  The  recognition  of  the  prin- 
ciple contended  for  by  the  guardian  in  this  case,  would  be  a 
judicial  repeal  of  all  this  system,  so  far  as  it  respects  invest- 
ments of  minors'  money.  The  wholesome  checks  imposed  on 
guardians  would  be  destroyed,  and  their  place  badly  supplied, 
by  subjecting  the  conduct  of  the  guardian  to  the  test  of  good 
faith  or  otherwise.  In  those  inquiries,  in  which  we  have  no 
positive  rules  to  guide  us,  this  is  indeed  the  proper  test ;  but, 
where  such  rules  prevail,  they  must  furnish  the  rules  of  decision. 
But,  upon  generafprinciples  of  law,  such  a  conversion  of  a  trust 
fund  is  inadmissible.  That  a  guardian  out  of  court,  cannot 
change  the  nature  of  the  estate  of  his  ward,  by  turning  money 
into  land,  or  vice  versa,  is  a  well  settled  rule  in  equity.  Rook 
V.  Warth,  1  Vesey,  461  ;  Witter  v.  Witter,  3  P.  Wms.  100 ; 
The  Earl  of  Winchelsea  v.  Norcliffe,  Vernon,  435 ;  Pierson  v. 
Shore,  1  Atk.  480.  I  say  out  of  court,  because  a  court  of 
chancery,  from  the  plastic  nature  of  its  powers,  can  so  mould 
any  authority  it  may  impart  for  this  purpose,  as  to  obviate  all 
the  inconveniences  which  might  otherwise  result  from  it.  Thus, 
a  guardian  may  be  authorized  by  the  Chancellor,  to  lay  out  the 
money  of  an  infant,  in  trust  for  his  executors  and  administra- 
tors, if  he  should  die  during  his  infancy,  and  after  his  maturity, 
for  him  and  his  heirs.  In  this  way,  one  of  the  most  prominent 
of  the  evils  incident  to  such  a  change  of  the  fund  is  obviated. 
The  infant  after  fourteen,  or  certainly  after  seventeen  years  of 
age,  may  bequeath  it  by  will,  or,  in  case  of  his  intestacy,  it  still 
goes  to  his  jiersonal  representatives.  We  possess  no  such  power, 
and  if  we  did,  it  has  not  been  invoked.  From  the  remarks 
already  made,  it  will  be  perceived,  that  the  doctrine  would 
enable  a  guardian,  by  converting  the  personal  into  real  estate, 
to  deprive  the  infant  of  his  right  to  dispose  of  his  personal  estate 
by  will,  and  to  alter  the  course  of  distribution  in  case  of  intes- 
tacy. No  such  doctrine,  however,  exists ;  and,  if  a  guardian  of 
his  own  motion,  will  so  employ  the  funds  of  his  ward,  he  must 
run  the  hazard  of  his  act  being  subsequently  recognized  or  re- 
jected at  the  pleasure  of  the  ward. 

r*97m  *"  The  other  exception  is  erroneous  in  point  of  fact. 
L  -I  The  interest  of  the  three  minors  was  one-half  of  the  land, 
if  they  had  elected  to  take  it.  The  deposition  of  Edward  B. 
Hughes,  the  witness  for  the  guardian,  shows,  that  he  never  paid 
a  cent  of  his  own  funds  for  the  land,  but  that  the  administrators 
accepted  his  receipts  on  account  of  his  wards,  as  satisfaction  for 
his  moiety.  Besides,  he  has,  in  the  most  unequivocal  manner, 
acknowledged,  that  he  considered  that  the  minor's  interest  in 
the  land.  On  the  26th  of  July,  1826,  after  the  report  of  the 
auditor  against  him,  and  after  his  excei)tions  were  filed,  he 
300 


March^T^im.]    OF  PENNSYLVANIA.  270 

[Case  of  Bonsall's  Appeal.] 

executed  a  deed  to  his  three  wards,  for  the  one  moiety  of  the 
farm,  for  the  purpose,  it  would  seem,  of  showing  his  readiness 
to  do  all  he  thought  himself  called  upon.  After  such  an  admis- 
sion as  this,  connected  with  the  evidence  in  the  cause,  it  is  vain 
*  to  argue  that  the  interest  of  each  of  the  minors  is  less  than  one- 
third  of  one-half  in  the  land,  or  rather,  in  the  purchase-money. 
There  are  some  exceptions  filed  by  the  ward  to  the  report,  but 
these  have  not  been  sustained.  The  report  of  the  auditor,  Mr. 
Kane,  stands  in  all  particulars  confirmed,  and  the  court  finally 
decree,  that  there  is  due  from  John  Bonsali  to  Hannah  Hughes, 
his  ward,  the  sum  of  one  thousand  five  hundred  and  thirty- 
seven  dollars  and  thirty  and  a  half  cents,  which  he  is  adjudged 
to  pay  the  said  Hannah,  together  with  the  costs  of  this  proceed- 
ing." 

/.  R.  Ingersoll,  for  the  appellant,  after  having  made  a  calcu- 
lation and  offered  some  arguments  for  the  purpose  of  maintain- 
ing the  first  exception,  contended  in  support  of  the  second  ex- 
ception, that  the  guardian  was  entitled  to  credit  for  the  whole 
sum  charged  against  him.  The  evidence  did  not,  he  said, 
exhibit  the  case  of  a  guardian  converting  the  ward's  personal 
estate  into  realty,  but  a  transaction  in  the  nature  of  a  partition 
of  the  real  estate  of  the  ward's  ancestor,  and  a  refusal  to  change 
it  into  personalty.  In  England,  for  reasons  peculiar  to  that 
country,  it  is  a  general  rule  not  to  permit  a  guardian  to  change 
the  nature  of  the  property,  but  it  is  by  no  means  clear  that  this 
may  not  be  done  under  some  circumstances  in  Pennsylvania. 
But  here  nothing  of  the  kind  was  attempted.  The  guardian, 
with  the  best  motives,  upon  the  soundest  judgment,  and  under 
the  most  advantageous  circumstances,  retained  the  original  estate 
of  the  ancestor  for  the  benefit  of  his  ward.  It  is  the  policy  of 
the  law  to  prevent  the  conversion  of  fixed  and  permanent  realty 
into  fleeting  and  precarious  personalty.  This  can  only  be  done 
under  certain  circumstances,  and  in  the  particular  mode  pointed 
out  by  statute ;  while  it  is  fully  decided  that  a  guardian  may 
accept  for  his  ward  a  purpart  of  the  real  estate  of  the  intestate, 
and  bind  his  ward  by  a  recognizance  for  the  payment  of  the 
appraised  value,  to  the  other  children.  Gelbach's  Appeal,  8 
Serg.  &  Rawle,  205.  The  guardian  is  only  required  to  give 
security  for  the  personalty,  and  when  land  is  turned  into  money, 
the  precarious  character  of  that  species  of  property  induces  the 
court  to  require  fresh  security.  The  Orphans'  Court  drew 
incorrect  inferences  from  the  acts  of  assemljly  to  which  they 
^referred,  relative  to  the  guardian  putting  out  to  inter-  r^oy-i-i 
est  the  money  of  the  ward.  Those  acts  were  not  in-  ^  J 
tended  for  the  security  of  the  ward,  but  of  the  guardian ;  to 

301 


271  SUPREME  COURT  [Philaddphui, 

[Case  of  Bonsall's  Appeal.] 

prevent  the  jiuliciousuess  of  his  investments  from  being  inquired 
into,  where  they  had  received  the  previous  sanction  of  the  court. 
Independently  of  those  acts,  the  guardian  has  a  right  to  make 
investments  according  to  his  discretion,  but  is  liable  to  have  the 
soundness  of  that  discretion  overhauled.  It  would  be  highly' 
disadvantageous  to  the  ward  to  deny  this  right.  The  most  ad- 
vantageous investment  is  in  mortgages,  and  the  guardian  is  fre- 
quently obliged  to  purchase  the  property,  lest  it  should  be 
sacrificetl.  The  reason  why  the  rule  that  the  nature  of  the 
property  shall  not  be  changed,  is  so  rigorously  enforced  in 
England  is,  that  it  would  alter  the  course  of  descent ;  but  this 
reason  does  not  apply  in  Pennsylvania,  where  the  realty  and 
personalty  generally  descend  in  the  same  channel.  Rook  v. 
\yarth,  1  Ves.  *461 ;  The  Earl  of  Winchelsea  v.  Norcliffe,  1 
Vern.  435 ;  Witter  v.  Witter,  3  P.  Wms.  100 ;  Reeves'  Dom. 
Rel.  334,  335. 

Furdon,  for  the  appellee. — It  is  well  settled  that  a  guardian 
cannot  change  the  nature  of  his  ward's  estate.  He  cannot  pur- 
chase real  estate  with  the  ward's  money,  because,  among  other 
reasons,  it  would  divert  it  from  the  course  of  administration,  alter 
its  descent,  and  take  away  from  the  ward  the  power  of  disposing 
of  it  at  the  age  of  eighteen,  according  to  Lord  Coke,  or  of  seven- 
teen, according  to  others.  Toll.  Law  of  Exec.  Bk.  2,  ch.  4,  p. 
182;  Hovend.  on  Fraud,  442;  Gord.  Law  of  Deced.  444;  2 
Atk.  413;  19  Ves.  122;  Co.  Litt.  89,  b. ;  Ring.  77;  3  Atk. 
709  ;  1  Ves.  303  ;  6  Ves.  6.  The  guardian  is  appointed  for  the 
care  and  management  of  the  minor's  estate  as  it  descended  to 
him  from  his  ancestor,  until  the  minor  has  discretion  to  assume 
the  management  of  it  himself.  This  duty  negatives  the  right  to 
alter  the  nature  of  the  property  committed  to  his  care.  In  some 
cases  such  a  power  has  been  directly  conferred  upon  the  court 
by  the  legislature,  but  in  none  has  it  been  given  to  the  guardian. 
One  of  the  principal  reasons  why  a  guardian  is  not  permitted  to 
alter  the  nature  of  the  property ;  namely,  that  it  would  alter  the 
course  of  descent  in  case  of  the  minor's  death  during  infancy,  is 
applicable  to  Pennsylvania  as  well  as  to  England,  though  not  to 
the  same  extent.  If  this  ward  had  died  during  her  minority  she 
would  have  left  neither  father  nor  mother,  but  brothers  and  sis- 
ters of  the  whole  and  half  blood ;  and  the  consequence  would 
have  been,  that  the  real  estate  would  have  gone  to  her  brothers 
and  sisters  of  the  whole  blood,  while  the  whole  and  half  blood 
would  have  taken  the  personal  estate  equally.  Act  of  1797, 
sec.  7,  Purd.  Dig.  381.  In  many  other  cases  the  descent  of  real 
and  personal  estate  is  provided  for  differently  by  our  intestate 
laws.  2  Binn.  285 ;  Toll.  Bk.  3,  ch.  6,  p.  370.  Whatever  may 
302 


J/arcA  27, 1829.]     OF   PEXXSYLVANIA.  271 

[Cuse  of  BonsaU's  Appeal.] 

be  the  value  of  the  reasoning  of  Judge  Reeves  in  favour  of  a 
change  in  the  law,  so  as  to  invest  guardians  with  the  power  of 
altering  the  nature  of  their  wards'  estates,  it  is  a  clear  admission 
that  the  law  is  *not  what  he  thinks  it  ought  to  be.  r*97.^-| 
Reeves'  Dom.  Rel.  334,  335,  337.  Besides  the  reasons  L  -'^J 
urged  in  support  of  the  rule  in  England,  there  is  one  peculiar  to 
this  country,  where  lands  are  the  subject  of  speculation,  and  pass 
from  hand  to  hand  as  an  article  of  traffic^  almost  as  readily  and 
frequently  as  some  sorts  of  personal  property.  The  conse- 
quences of  permitting  him  to  speculate  in  his  own  name  with  his 
ward's  money,  need  hardly  be  pointed  out.  The  property  thus 
purchased  may  be  treated  as  that  of  the  guardian  or  ward,  ac- 
cording to  the  successful  or  unsuccessful  issue  of  the  specu- 
lation. 

The  circutnstance,  that  if  a  partition  had  been  made  in  due 
course  of  law,  and  tlie  guardian  had  accepted  tiiese  lands  for  his 
ward,  the  ward  would  liave  been  bound,  is  no  argument  in  favour 
of  the  course  pursued  in  the  present  instance.  If  such  a  pro- 
ceeding were  valid,  the  act  of  assembly  would  not  only  be  useless 
and  inoperative,  but  the  interest  of  parties  whom  it  was  intended 
to  protect,  would  be  sacrificed.  It  would  enable  the  guardian  to 
deprive  the  eldest  son,  and  the  other  children  in  their  turn,  of 
the  privilege  given  them  by  the  act,  of  taking  the  land  at  the 
appraisement.  In  partition,  too,  the  guardian,  if  he  accepts  for 
his  ward,  is  obliged  to  pay  or  secure  to  be  ])aid  to  the  other 
heirs,  the  appraised  value  of  the  land ;  but,  by  the  course  pur- 
sued in  this  case,  the  guardian  may,  at  public  sale,  purchase  them 
far  below  their  value,  without  giving  any  security  whatever,  ex- 
cept such  as  may  be  required  by  the  administrators,  with  whom 
he  may  make  the  best  terms  he  can.  The  sureties  in  the  guar- 
dian's general  bond,  would  not  be  liable  for  the  payment,  be- 
cause, he  having  no  power  to  purchase  lands,  any  misconduct  in 
relation  to  the  purchase,  would  not  be  an  infraction  of  his  duties 
as  guardian,  within  the  meaning  of  the  bond.  Muir  v.  Wilson, 
1  Hopk,  Ch.  R,  512,  In  Gelbach's  Appeal,  8  Serg.  &  Rawle, 
205,  it  is  expressly  declared,  that  the  guardian,  derives  tlie  power 
to  accept  lands  for  his  ward,  from  the  act  of  assembly  exclu- 
sively. To  give  validity  to  a  proceeding  by  which  a  ward  is 
compelled  to  take  a  portion  of  her  father's  real  estate,  by  the 
voluntary  and  irregular  act  of  the  guardian,  is  to  dispense  with 
all  the  guards  with  which  the  legislature  has  surrounded  tlie 
ward,  to  defeat  the  rights  of  otliers,  and  virtually  to  repeal  the 
whole  system  of  the  law  of  partition,  by  rendering  a  compliance 
with  its  provisions  unnecessary. 

Mr.  Purdon  then  went  into  an  argument  and  calculation,  to 
show  that  the  auditor  was   right  in  charging  the  guardian  with 

303 


272  SUPREME  COURT  [Philadelphia, 

[Case  of  Bonsall's  Ai)p€al.] 

one-third  of  one-half,  instead  of  one-third  of  one-third  of  the 
purchase-money. 

Tiie  opinion  of  the  court  was  delivered  by 

Huston,  J. — The  facts  in  this  case,  and  there  was  no  dispute 
or  contrariety  of  testimony,  were  as  follows : — Thomas  Huglies 
died,  leaving  nine  children,  six  by  a  former  wife  and  three  by  a 
second  wife :  of  the  six,  one  died  after  the  sale  hereafter  men- 
tioned, aged  eight  or  nine  years. 

r*97'^T  *^"  ^  petition  by  the  administrators,  the  Orphans* 
L  -•  Court  of  Berks  county,  granted  an  order  to  sell  lands, 
to  pay  debts  and  maintain  the  children.  A  tract  of  seventy- 
three  acres  had  been  exposed  to  sale,  and  ninety-nine  dollars  per 
acre  bid  for  it  by  one  Allison.  The  administrators  considering 
this  price  too  low,  bid  higher,  and  returned  it  unsold.  Two  sub- 
sequent orders  were  obtained,  and  the  land  oifered  for  sale.  On 
the  second  of  these  in  1819,  the  eldest  son,  Edward  B.  Hughes 
and  James  Hutchinson,  who  was  married  to  the  eldest  daughter, 
finding  it  likely  to  sell  at  what  they  supposed  under  its  value, 
bid  for  it.  The  tract  was  crying  at  forty-eight  dollars  per  acre ; 
the  administrators  refused  to  strike  it  down  at  this  price  unless 
they  would  agree  to  let  the  other  heirs  or  some  of  them  be  inter- 
ested in  the  purchase.  This  they  agreed  to,  and  it  was  struck 
down  to  them  and  a  deed  made  to  them ;  and  they,  in  pursu- 
ance of  an  agreement  to  that  eifect,  the  next  day  conveyed  one- 
half  of  it  to  John  Bonsall,  who  was  guardian  of  Hannah  and 
two  others  of  the  children.  Bonsall  paid  no  money,  but  made 
three  receipts,  each  for  one-third  of  the  purchase-money  of  the 
tract,  as  so  much  received  from  the  administrators  on  account  of 
his  three  wards,  and  gave  them  to  E.  B.  Hughes  and  J.  Hutch- 
inson, who  handed  them  to  the  administrators  in  payment  for 
the  land. 

The  deed  to  Bonsall  did  not  state  the  trust  for  his  wards,  but 
the  proof  was  full,  that  the  agreement  and  understanding  at  all 
times  were,  that  the  purchase  was  for  their  use,  and  the  pay- 
ment was  as  above  stated.  The  place  required  a  house  and 
other  improvements  :  these,  by  agreement  of  Bonsall  with  E.  B. 
Hughes  and  Hutchinson,  were  made  by  E.  B.  Hughes,  who 
moved  on  the  land,  and  cost,  as  he  stated,  twelve  hundred  and 
ninety-three  dollars ;  one  half  of  which' was  divided  by  Bonsall 
among  his  three  wards,  and  one-third  charged  to  each.  The 
land  was  sold,  subject,  it  seems,  to  a  dower,  and  it  has  produced 
nothing  more  than  this  dower  and  the  taxes  since.  Bonsall 
offered  to  each  of  his  wards  a  deed  for  one-third  when  they  came 
of  age,  and  they  refused  to  accept  them.  On  Hannali's  coming 
of  age,  he  offered  to  settle  his  accounts,  and  the  Orphans'  Court 
304 


March  27, 1829.]    OF   PENNSYLVANIA.  273 

[Case  of  Bonsall's  Appeal.] 

charged  him  with  the  price  of  the  land,  and  of  course,  with  tlie 
improvements,  holding  that  he  must  keep  the  land  and  pay  for 
it,  and  account  for  the  money  and  interest. 

As  we  had  not  the  administration  accounts,  nor  the  state  of 
the  personal  or  real  estate  of  the  intestate  before  us,  there  is 
some  difficulty  in  understanding  how  lauds  could  be  sold  for 
debts,  and  the  purchase-money  go,  not  to  pay  debts,  but  to  chil- 
dren ;  and,  if  sold  to  support  the  children,  it  is  not  clear  how  it 
could  be  bought  by  the  children  and  improved  by  them,  and 
never  yield  them  any  rent,  and  yet  they  be  supported.  It  ap- 
pears, however,  from  the  guardian's  account,  there  was  other 
estate ;  perhaps  this  land  was  but  a  small  part  of  it. 

We  have  not  considered  this  case  as  clear  of  difficulty.  The 
doctrine  that  a  trustee  cannot  go  beyond  the  line  of  duty  pre- 
scribed by  *law,  and  make  changes  of  trust  property  r*97_^-| 
from  money  to  lands,  or  lands  to  money,  is  well  settled ;  ^  "  -■ 
and  generally,  if  the  trustee  invests  money  in  lands,  the  cestui 
que  trust  may,  at  his  option,  accept  of  the  lands  or  refuse  them, 
and  demand  his  money.  Harrison  v.  Harrison,  2  Atk.  120. 
And  it  is  also  true,  that  a  trustee  will  not  be  allowed  for  ])uild- 
ings  and  improvements,  even  where  they  are  substantial ;  he  is 
generally  allowed  only  for  necessary  repairs.  1  Johns.  Cha.  27. 
But  this  is,  as  all  other  general  rules  must  be,  subject  to  excep- 
tion, when  circumstances  require  an  exception,  to  prevent  injus- 
tice. Guardians  are  also  a  kind  of  trustees,  over  whom  courts 
have  held  a  very  strict  hand  :  perhaps  this  is  right,  and  this 
court  does  not  feel  disposed  to  decide  otherwise.  But  the  duty 
and  the  power  of  a  guardian  are,  in  this  country,  peculiar  in 
some  respects.  For,  when  a  man  owning  lands,  dies  intestate, 
and  an  application  is  made  to  the  Orphans'  Court  for  partition 
or  a])praisement,  and  the  inquest  return  that  the  lands  will  not 
divide,  and  value  the  whole  together  or  in  parcels,  a  guardian 
may,  if  no  child  takes  at  the  appraisement,  either  permit  the 
lands  to  be  sold  and  take  his  ward's  share  in  money ;  or,  he  may 
take  lands  at  the  appraisement,  and  bind  his  ward  to  pay  the 
share  or  shares  of  the  other  children  :  This  has  always  been 
done,  is  contemplated  by  our  laws,  and  has  been  sanctioned  by 
this  court.  Gelbach's  Appeal,  8  Serg.  &  Rawle,  205.  And,  as 
to  improvements,  so  much  of  the  lands  in  this  state  is  totally 
unproductive,  unless  some  means  are  used  to  bring  them  into 
cultivation  or  render  them  habitable,  that  guardians  have,  at  all 
times,  let  lands  on  improving  leases ;  that  is,  given  a  certain 
number  of  years  to  a  tenant,  for  erecting  buildings,  &c. ;  and, 
where  the  minor  has  funds,  have  made  buildings  such  as  were 
absolutely  necessary  to  render  lands  habitable  and  productive ; 
and  generally  this  has  been  allowed  without  objection.     Our  act 

VOL.  I.— 20  305 


274  SUPREME  COURT  [Philadelphia, 

[Case  of  Bonsall's  Appeal.] 

of  the  19th  of  April,  1794,  about  intestates,  authorizes  the 
Orphans'  Court  to  grant  orders  to  mortgage  or  sell  part  of 
the  lands  to  pay  debts  and  maintain  and  educate  the  children, 
and  improve  the  residue  of  the  estate,  (see  sect.  19.)  And 
in  some  j)arts  of  this  state  the  latter  clause  is  an  important 
one.  I  do  not,  however,  mean  to  say  a  guardian  has  an 
authority  as  to  improvements  ad  libitum,  or  beyond  what  is 
clearly  necessary. 

To  apply  these  remarks  to  the  present  case.  The  guardian 
did  not  expend  money  collected  by  the  administrators,  and  paid 
to  him,  in  purchasing  lands ;  but  when  a  part  was  selling,  and 
a  portion  of  the  purchase-money  would  come  to  his  wards ;  and 
when,  in  the  opinion  of  those  children  who  were  of  age,  it  was 
selling  at  a  great  undervalue ;  when  the  administrators,  one  of 
whom  was  brother-in-law  of  the  intestate,  was  so  fully  convince<l 
of  this,  that  he  would  not  agree  to  make  a  sale  unless  the  wards 
of  Bonsall  were  let  in  to  partake  of  the  advantages  to  be  derived 
from  a  purchase  at  that  price;  and,  when,  from  all  the  testi- 
mony, and  all  the  argument,  it  is  proved  and  admitted,  that  in 
r*97^1  making  this  purchase,  or  rather,  in  agreeing  to  *take  a 
L  -I  share  of  the  purchase,  Bonsall  acted,  as  he  and  as  all 
their  friends  believe,  for  the  benefit  of  his  wards,  it  would  seem 
hard  to  throw  any  loss  on  him.  An  extraordinary  combination 
of  circumstances  had  raised  the  price  of  lands  in  this  state,  be- 
yond that  at  which  they  would  continue.  They  have  since  been 
depressed  almost  as  much  below  what  will  settle  down  as  their 
value.  The  impression  as  to  the  value  of  lands  was  not  partial ; 
it  pervaded  all  ranks.  A  few  cautious  individuals  who  did  not 
engage  in  buying,  have  since  assumed  credit  for  much  wisdom. 
Ko  doubt  every  relation  of  Hannah  Hughes  thought  this  land 
was  sacrificing  at  forty-eight  dollars  per  acre.  The  act  of  the 
guardian  was  no  more  than  saying,  I  will  keep  it  for  my  wards 
at  that  price.  If  not  then  sold,  and  if  appraised,  he  might 
have  taken  it  at  that  price,  and  the  law  and  the  decisions  of 
this  court  would  have  supportetl  him.  And  the  taking  at  an 
appraisement,  and  joining  in  a  purchase  of  the  lands  in  which 
the  ward  has  a  share  are  so  much  alike,  that  we  think  the 
guardian  in  this  case,  on  the  facts  proved  and  not  denied,  was 
justifiable.  The  conduct  of  the  administrators,  their  refusing  to 
proceed  with  the  sale,  unless  Hannah  Hughes  and  the  others 
were  to  partake  in  the  advantages,  is  a  strong  circumstance ; 
more  so  than  the  fact  that  the  two  who  were  of  age  wished  to 
purchase  on  their  own  account ;  it  shows  that  it  was  considered 
as  giving  the  land  of  their  father  to  these  three  children  by 
means  of  this  order  of  court,  instead  of  a  proceeding  to  divide 
or  appraise. 
306 


JfarcA  27, 1829.]    OF   PENNSYLVANIA.  275 

[Case  of  Bonsall's  Appeal.] 

Much  was  said  at  the  argument  about  this  piece  of  land  being 
taken  by  five  or  six  children,  instead  of  nine ;  and  of  the  pro- 
portion which  Bonsall  ought  to  account  for  in  money,  if  he  must 
account  at  all.  We  do  not  know  what  other  estate  there  was, 
uor  whether  any  of  it  was  bought  for  the  other  three,  nor  why 
the  administrators,  who  insisted  on  the  children  being  interested 
in  the  purchase,  agreed  to  let  these  five  have  this  land ;  but,  as 
we  have'  determined  that  Bonsall  is  not  bound  to  keep  it,  the 
Orphans'  Court  were  wrong  in  deciding  that  he  must  pay 
Hanuah,  (whose  case  alone  is  before  us,)  her  share  in  money : 
we  need  not  discuss  this  part.  The  Orphans'  Court  were  right 
in  that  part  of  the  case  which  related  to  the  proportion  of 
Hannah. 

As  to  the  rents  since  the  sale,  and  the  buildings,  from  the 
decision  of  the  Orphans'  Court,  it  was  immaterial  for  them  to 
consider  this  part  of  the  case.  If  Bonsall  must  keep  the  lands, 
he  must  also  be  owner  of  the  rents,  and  pay  for  improvements ; 
but,  from  the  decision  of  a  majority  of  this  court,  these  are  now 
subjects  of  inquiry,  and  we  have  not  before  us  enough  on  which 
to  decide.  We  do  not  know  whether  proper  attention  and  care 
were  exhibited ;  we  do  not  know  whether  there  was  an  old  house 
or  no  house  on  this  land ;  and  we  have  only  the  testimony  of 
Edward  B.  Hughes,  who  built  the  new  one,  as  to  its  being  proper 
for  this  land,  or  as  to  the  propriety  of  its  cost;  some  more 
specific  evidence  on  these  points  must  be  had.  And  contrary  to 
the  usual  course  in  such  cases,  we  remand  *this  cause  rn^nnn-i 
to  the  Orphans'  Court,  to  inquire  and  decide  as  to  the  L  -' 
conduct  of  the  guardian  since  the  purchase,  as  to  the  rents  and 
to  the  buildings. 

Tod,  J. — Assenting,  as  I  do,  most  entirely  to  the  perfect 
good  faith  and  honesty  of  the  proceedings  of  this  accountant, 
in  point  of  law,  I  am  not  able  to  concur  in  the  result  which  the 
court  has  come  to.  It  strikes  me  that  the  money  of  the  infant 
has  been  laid  out  imprudently  ;  but  whether  imprudently  or  not, 
if  illegally,  the  guardian  must,  I  think,  bear  the  loss  himself. 
The  authority  relied  on  by  the  counsel  of  Mr.  Bonsall,  is  the 
case  of  Gelbach's  Appeal,  8  Serg.  &  Rawle,  205.  To  my  ap- 
prehension, Gelbach's  case  is  very  unlike  the  present.  There 
the  land  had  been  publicly  taken  for  the  infant  in  the  infant's 
own  name.  In  that  case  the  act  of  assembly  expressly  author- 
ized the  guardian  to  bind  his  ward.  According  to  the  practice 
from  the  first  settlement  of  the  country,  a  whole  farm  was  taken 
for  a  son  at  the  appraisement  of  a  jury  ;  a  son  who  was  himself 
to  be  a  farmer,  who  probably  had  no  means  of  living  except 

307 


276  SUPREME  COURT  IPhiladelphia, 

[Case  of  Bonsairs  Appeal.] 

upon  a  farm,  and  who  had  every  reasonable  prospect  of  finding 
the  purchase  a  good  one.  In  the  present  case,  Mr.  Bonsall,  the 
guardian,  appears  to  liave  acted  witliout  any,  tlie  slightest  pre- 
tence of  authority  of  law.  With  the  visionary  hopes  of  a  great 
bargain,  he  enters  into  a  speculation  altogether  in  his  own  name, 
purchasing  one  undivided  half  of  seventy-three  acres  in  Berks 
county,  which  land  had  l)een  part  of  the  estate  of  the  father  of 
his  wards,  but  which  had  been  already  sold  at  public  sale  by  the 
administrators,  under  an  order  of  sale  by  the  Orphans'  Court 
for  the  payment  of  debts  and  the  maintenance  of  the  minor 
children  of  the  intestate.  This  purchase  of  the  half  in  Mr. 
Bonsall's  own  name,  was,  as  it  now  appears,  in  trust  for  the 
three  children,  his  wards,  and  he  paid  for  it  with  their  money, 
or  what  is  the  same  thing,  he  gave  receipts  to  the  administra- 
tors as  for  so  much  cash,  the  purchase-money  of  the  half  of  the 
laud  being  seventeen  hundred  and  seventy-two  dollars.  Thus, 
in  lieu  of  her  money,  Hannah  Hughes  the  appellee,  is  now  pre- 
sented with  a  title  to  one  undivided  sixth  part  of  seventy-three 
acres  in  Berks  county  :  a  sort  of  property,  which,  in  my  opinion, 
no  rule  of  law  or  equity  will  oblige  her  to  take. 

The  case,  if  it  stopped  here,  would,  I  think,  be  conclusive  in 
favour  of  the  appellee.  But,  so  far  from  stopping  here,  Mr. 
Bonsall  went  on  to  lay  out  almost  the  whole  of  the  residue  of 
the  money  of  the  three  infants  in  building  a  new  house  on  the 
land,  the  children's  half  of  the  cost  of  the  house  being  six  hun- 
dred and  forty-six  dollars  and  fifty  cents,  cash  expended,  not  as 
I  understand  it,  by  the  guardian,  but  at  least  forty  miles  from 
his  residence ;  of  course  not  under  his  view,  nor  under  the  view 
of  anybody  else  accountable  as  guardian,  but  by  Edward  B. 
Hughes,  one  of  the  partners  in  the  purchase,  who  occupied  the 
house  and  the  farm  some  four  or  five  years,  paying  nothing  ex- 
p^n__-|  cept  the  taxes  and  the  interest  of  the  widow's  third.  *Ac- 
•-  -^  cording  to  his  affidavit,  the  farm  was  not  such  as  would 
yield  any  clear  profit.  And  there  is  no  doubt  of  the  correct- 
ness of  his  statement,  because  the  tenant  who  came  after  him, 
has,  for  years,  held  and  still  continues  to  hold  the  farm,  new 
house,  and  all,  merely  keeping  it  in  repair,  paying  the  taxes, 
and  the  interest  of  the  widow's  share ;  so  that  the  speculation 
appears  to  end  in  this :  Hannah  Hughes,  instead  of  her  money, 
which,  with  interest,  would  amount  to  more  than  twelve  hundred 
dollars,  is  offered  a  deed  for  one  undivided  sixth  part  of  a 
house  and  farm,  which,  admitting  what  I  suppose  to  be  very 
doubtful,  if  not  impossible,  that  the  girl  could  attend  to  it  her- 
self, and  be  able  to  hold  her  own  beset  by  so  many  partners,  yet 
can  produce  during  the  widow's  life,  no  clear  profit  to  the 
^      308 


March  27, 1829.]    OF  PENNSYLVANIA.  277 

[Case  of  BonsalFs  Appeal.] 

amount  of  a  grain  of  corn ;  and,  after  the  widow's  death,  judg- 
ing from  all  former  rents,  provided  no  accident  happens,  and 
provided  no  repairs  of  the  buildings  are  wanted,  will  yield  to 
JMiss  Hughes  something  less  than  one  per  cent,  on  the  money, 
which,  without  this  purchase  by  her  guardian,  would  be  now 
fairly  in  her  hands.  I  believe  there  is  no  possible  case 
which  can  authorize  the  throwing  of  such  a  bargain  upon  an 
infant. 

As  to  the  necessity  imposed  upon  a  guardian  to  interfere  to 
prevent  the  sacrifice  of  an  estate,  I  would  observe,  this  pur- 
chase by  Mr.  Bousall,  was  a  month  or  so  after  the  public  sale 
by  the  administrators.  At  any  rate,  from  the  proofs  in  the 
cause,  there  is  not  the  least  ground  to  suppose  that  money  was 
wanted.  Actually,  the  sale  appears  to  have  been  upon  credit. 
But,  suppose  it  to  have  been  compulsory,  I  would  still  insist 
that  a  guardian  cannot  be  permitted  to  expose  the  whole  patri- 
mony of  one  child  to  the  risk  of  destruction,  to  prevent  imagi- 
nary loss  to  an  estate  in  which  that  child  has  but  a  ninth 
share. 

There  are  some  matters  which,  perhaps,  the  affidavits  do  not 
sufficiently  explain  :  for  instance,  it  might  seem  that  Messrs. 
Hughes  and  Hutchinson,  the  original  purchasers,  had  not  the 
same  faith  in  the  profits  of  the  bargain,  which  Mr.  Bonsall  ap- 
pears to  have  had.  After  getting  a  complete  title,  in  the  very 
next  mouth,  they  gave  up  one  full  half  of  their  purchase  to 
Bonsall,  without  asking  any  premiums,  I  was  at  first  conclud- 
ing that  this  might  have  been  done,  because,  they  had  promised 
the  administrators  to  let  the  rest  of  the  children  into  a  share 
of  the  profits.  But  that  cannot  be.  There  was  no  promise  that 
any  children  should  have  more  than  their  equal  share,  and  the 
three  wards  of  Mr.  Bonsall  have  been  loaded  with  one-half  of 
the  whole  bargain,  when,  if  the  promise  was  the  motive,  three- 
ninths  of  the  speculation  was  all  that  could  have  been  allotted 
to  them. 

The  policy  of  the  law,  and  a  due  regard  to  the  protection  of 
infants,  seem  to  require  that  good  intentions  shall  not  excuse 
a  guardian  who  takes  in  hand  to  risk  his  ward's  money  without 
authority.  But,  granting  such  excuse  may  be  received  in  some 
cases,  the  peculiar  circumstances  of  this  case  are  such,  though 
they  leave  not  *the  least  stain  upon  the  moral  conduct  r^^yo-i 
of  Mr.  Bousall,  yet  that  we  cannot,  by  any  means,  in  '-  -■ 
my  opinion,  permit  him  to  throw  this  heavy  loss  from  himself 
by  setting  up  a  parol  trust  against  the  infants,  contrary  to  his 
own  recorded  deed.  If  we  can,  then  it  seems  to  me  that  other 
men,  totally  different   from   Mr.  Bonsall,  that  any  guardian, 

309 


278  SUPREME  COURT  ^Philadelphia, 

[Qase  of  Bonsall's  Appeal.] 

trustee,  or  executor,  liaving  in  his  hands  the  money  of  infants, 
may,  in  times  of  speculation,  be  permitted  to  lay  out  that 
money  in  this  mode  of  preparation  for  either  event,  and  be 
doubly  armed  with  proof;  first  with  a  deed  recorded,  showing 
the  title  in  himself,  and  thus  exposed  to  the  temptation,  and 
holding  the  power  of  claiming  the  profits  for  his  own  use,  if 
any  profits  there  are,  having  at  the  same  time,  in  reserve  for 
the  event  of  a  loss,  parol  declarations  of  trust  to  be  proved  by 
men  whom  the  executor  or  guardian  well  knows,  but  whom  the 
infants  may  never  be  able  to  find  out.  Even  in  the  present 
case,  where  there  is  not  the  least  ground  of  suspicion  of  in- 
tended unfairness,  suppose  the  land  which  had  iDeen  conveyed 
to  Mr.  Bonsall  at  the  price  of  seventeen  hundred  and  seventy- 
two  dollars,  had  been  sold  the  next  year  for  three  thousand  dol- 
lars, and  Bonsall  had  died  and  the  witnesses  had  died  or 
removed  from  the  country,  or  had  forgotten  the  words  spoken, 
or  were  unknown  to  the  infants ;  what  possible  chance  would 
they  have  had  against  the  record  and  against  the  statute  of 
frauds  ?  The  recorded  deed  states,  the  purchase-money  to  have 
been  paid  by  Mr.  Bonsall ;  it  conveys  the  laud  to  him  and  his 
heirs,  "to  the  only  proper  use  and  behoof  of  him,  the  said 
John  Bonsall,  his  heirs  and  assigns  for  ever."  Kothing  was 
recorded,  nor  even  written,  showing  the  least  trace  of  property 
in  the  infants ;  and  not  until  six  years  afterwards,  when  the 
whole  bargain  had  gone  to  perdition,  does  Mr.  Bonsall  make  a 
deed  throwing  the  legal  title  oif  of  himself,  upon  his  three 
wards.  This  is  a  delay,  a  negligence,  which,  if  there  was  noth- 
ing else  in  the  case,  ought,  in  my  opinion,  to  subject  him  to  the 
whole  loss. 

It  is  said  by  the  appellant's  counsel,  that  the  Orphans' 
Court  have,  upon  their  own  principles,  erred  in  charging 
him  with  one-third  of  one-half  of  the  purchase-money  of  the 
seventy-three  acres :  Whereas,  at  most,  it  could  be  but  one- 
third  of  one-third,  that  being  Hannah's  share  in  her  father's 
estate.  Evidently  there  is  no  such  mistake.  Hannah  had 
other  property  in  the  hands  of  her  guardian,  and  with  it 
he  purchased  for  her,  not  one-ninth  part,  but  one-sixth  part, 
of  the  seventy-three  acres.  If  the  purchase  is  left  upon 
his  own  hands,  as  the  Orphans'  Court  decided  that  it 
ought  to  be,  he  then  holds  one-sixth  part  of  the  land  in- 
tended for  Hannah,  and  is  liable  to  her  for  one-sixth  part 
of  the  purchase-money.  In  one  word,  whatever  money 
of  hers  he  has  received,  or  ought  to  have  received,  he  is 
accountable  for,  and  must  restore  in  money,  and  not  in  real 
estate. 

310 


ifa/cA 27, 1829.]    OF  PENNSYLVANIA.  278 

[Case  of  Bonsall's  Appeal.] 

Therefore,  in  ray  opinion,  the  decree  of  the  Orphans'  Court 
should  be  affirmed. 

Cited  by  Counsel,  1  Penn.  R.  210 ;  4  R.  154;  5  R.  327 ;  3  W.  370 ;  7  W.  & 
S.  112;  2  Barr,  279;  3  Barr,  322;  1  J.  39;  3  C.  Ill;  11  C.  421;  12  C.  97 ;  5 
S.  116;  10  S.  121;  4  N.  361;  7  N.  201;  3  O.  367;  7  W.  N.  C.  630;  11  W.  N. 
C.  293. 

Cited  by  the  Court,  8  W.  22 ;  9  W.  &  S.  134,  and  oommenied  on  and  ex- 
plained, 3  R.  55. 

This  case,  as  explained  in  3  R.  55,  was  a  case  of  riot  converting,  and  as 
pointed  out  in  Savings  Fund's  Ap.,  26  S.  203,  a  guardian,  in  such  matters,  is 
not  bound  to  such  diligence  aa  are  trustees  for  collection  and  disbursement. 


END  OF  MARCH  TERM,  1829— EASTERN  DISTRICT. 


311 


CASES 

IK 

THE  SUPREME  COURT 

OF 

PENNSYLVANIA. 


LANCASTER  DISTRICT— MAY  TERM,  1829. 


[Lancaster,  Juke  1, 1829.] 
Hartman  against  Dowdel,  with  notice  to  Hawk. 


IN   EBBOB. 


An  assignment  by  a  husband  of  his  wife's  choses  in  action,  as  a  collateral 
security,  does  not  deprive  her  of  the  right  of  survivorship,  in  case  he  dies  be- 
fore they  are  reduced  to  possession. 

On  a  writ  of  error  to  the  District  Court  of  Yorh  county,  this 
appeared  to  be  an  amicable  action  for  money  had  and  received  by 
Michael  Dowdel,  Esq.,  sheriff  of  the  county,  for  the  use  of  John 
Hartman,  the  plaintiff. 

l^he  following  case  (to  be  considered  as  a  special  verdict,)  was 
stated  for  the  opinion  of  the  court  below,  on  which  judgment 
was  rendered  for  the  defendant. 

Case. 

"On  the  first  day  of  January,  1816,  Rudolph  Spangler  died, 
leaving,  among  other  children,  Margaret,  intermarried  with  John 
Hawk,  and  leaving  real  estate,  which  was  sold  by  William  John- 
son and  Barnet  Spangler,  administrators  of  the  said  Rudolph 
Spangler,  deceased,  (the  heirs  having  refused  to  take  the  same 
at  the  valuation  agreeably  to  the  provisions  of  the  act  of  assem- 
bly,) on  gales ;  after  which  the  said  John  Hawk  and  his  said  wife 
Margaret,  executed  to  John  Hartman,  the  plaintiff,  the  annexed 
power  of  attorney  on  the  day  of  its  date,  and  for  the  considera- 
tion therein  mentioned.  And  on  the  1st  day  of  January,  1820, 
312 


June  1,1829.]     SUPREME  COURT  OF  PA.  280 

[Hartman  v.  Dowdel,  with  notice  to  Hawk.] 

the  said  John  *Havvk,  deceased,  and  after  his  death,  to  r^oor,-] 
wit :  on  the  31st  day  of  January,  1823,  there  came  to  L  J 
the  hands  of  the  said  William  Johnson  and  Barnet  Spanglcr,  of 
the  proceeds  of  the  sale  of  the  said  real  estate  to  be  paid  to  the 
said  Margaret  or  such  other  person  as  was  entitled  to  receive  the 
same  in  her  right,  (as  her  share  in  the  hands  of  said  administra- 
tors,) the  sum  of  ninety  dollars,  to  recover  which,  a  suit  was 
brought  in  the  Common  Pleas  of  York  county,  by  the  said  Mar- 
garet Hawk  against  the  said  William  Johnson  and  Barnet  Span- 
gler;  and  on  the  8th  day  of  August,  1826,  judgment  was  duly 
rendered  in  the  said  suit,  for  the  plaiutiif,  for  one  hundred  and 
nine  dollars,  being  the  amount  of  principal  and  interest ;  on 
which  judgment,  the  plaintiff  issued  a  fieri  facias,  which  was  ex- 
ecuted by  the  defendant  as  sheriif  of  the  county  of  York,  and 
on  which  he  raised  and  has  in  his  hands,  to  be  paid  to  such  per- 
sons as  may  be  entitled  to  receive  the  same,  one  hundred  and 
fourteen  dollars,  which  he  refuses  to  pay  over,  the  same  being 
claimed  by  Margaret  Hawk  in  her  own  right,  and  also  by  the 
said  John  Hartman,  by  virtue  of  the  annexed  power  of  attorney. 
If  the  said  power  of  attorney  be  sufficient  to  entitle  the  said  John 
Hartman  to  the  money  in  question,  then  judgment  to  be  entered 
for  the  plaintiff  for  the  said  sum  of  one  hundred  and  fourteen 
dollars,  otherwise  for  the  defendant." 

The  power  of  attorney  referred  to  was  as  follows  : 
"  Know  all  men  by  these  presents,  that  we,  John  Hawk  and 
Margaret,  his  wife,  late  Margaret  Spangler,  one  of  the  heirs  of 
E,udol])h  Spangler,  deceased,  have  made,  constituted,  and  ap- 
pointed, and,  by  these  presents,  do  make,  constitute,  and  appoint, 
and  in  our  place  and  stead,  do  place  and  depute  our  trusty  friend, 
John  Hartman,  of  the  borough  "of  York,  tailor,  our  true  and 
lawful  attorney  for  us,  and,  in  our  names,  for  his  use,  to  ask,  .de- 
maud,  sue  for  and  recover,  and  receive  of  and  from  Barnet  Span- 
gler and  William  Johnson,  administrators  of  all  and  singular, 
the  goods  and  chattels,  lands  and  tenements,  of  the  said  Rudolph 
Spangler,  deceased,  all  such  sum  and  sums  of  money,  legacies, 
debts  and  duties  whatsoever,  which  now  are  due  or  hereafter  to 
become  due,  out  of  and  from  the  real  and  personal  estate  of  the 
said  deceased,  until  such  time  or  times  as  he  will  be  fully  paid 
and  satisfied,  for  the  sum  of  seven  hundred  and  forty-one  dollars 
and  eighty-one  cents,  for  which  sum  he  hath  obligations,  and  the 
further  sum  of  two  hundred  dollars  which  we  are  in  due  him,  with 
lawful  interest  on  the  latter  sum,  if  so  much  is  or  shall  be  coming 
to  us  out  of  the  said  deceased's  estate,  and  to  have,  use,  and 
take  all  lawful  ways  and  means,  in  our  name  or  otherwise,  for  the 
recovery  thereof,  by  attachment,  arrest,  distress,  or  otherwise, 
and  to  agree  and  compound  for  the  same,  and  acquittances  or 

313 


280  SUPREME  COURT  [LancaMer, 

[Hartman  v.  Dowdel,  with  notice  to  Hawk.] 

other  sufficient  discharges  for  the  same  for  us,  and  in  our  names 
to  make,  seal  and  deliver,  and  to  do  all  other  lawful  acts  and 
things  as  fully  in  every  respect  as  we  ourselves  could  do  if 
r*28n  *personally  present,  and  attorneys  one  or  more  under 
L  J  him,  for  the  purposes  aforesaid  to  make,  and  at  his 
pleasure  to  revoke,  ratifying,  and  allowing  all  and  whatsoever 
our  said  attorney  shall  in  our  names  do  or  cause  to  be  done  in 
and  about  the  premises  by  virtue  of  these  presents,  and  as  soon 
as  our  attorney  shall  have  received  his  just  claims,  to  account 
with  us  for  the  same  and  irrevocable  until  that  time." 

Durkee,  for  the  plaintiff  in  error,  contended,  that  the  power 
of  attorney  from  Hawk  and  wife  to  the  plaintiff,  was  an  equi- 
table assignment  to  the  latter,  of  the  debt  due  to  the  wife,  and  a 
sufficient  appropriation  of  it  to  make  it  his.  Under  these  cir- 
cumstances the  death  of  the  husband  was  no  revocation  of  the 
power.     2  Vern.  559 ;  1  Eq.  Ca.  Ab.  45. 

Bamitz,  contra,  answered,  that  although  the  power  of  altor- 
ney  was  certainly  irrevocable  during  the  life  of  the  husband, 
yet  after  his  death,  his  dominion  over  his  wife's  choses  in  action 
ceased,  and  the  plaintiff  standing  in  his  place,  is  not  entitled  to 
recover.  He  cited  Prec.  in  Ch.  125;  8  Wheat.  175,  201 ;  Co. 
Litt.  52 ;  Wills.  105,  565. 

The  opinion  of  the  court  was  delivered  by 

Gibson,  C.  J. — A  letter  of  attorney  may  be  irrevocable,  and 
contain  an  assignment  of  the  thing,  to  be  recovered,  as  undoubt- 
edly was  the  case  here.  It  is  certain  also,  that  any  disposition 
of  a  wife's  chose  in  action  which  is  substantially  an  assignment 
for  valuable  consideration,  will  bar  her  right.  The  assignee, 
however,  must  be  a  purchaser,  else  he  will  stand  in  the  place  of 
the  husband,  and  failing  to  reduce  the  chose  to  possession  in  the 
lifetime  of  the  husband,  the  wife's  right  will  survive.  In  other 
words,  the  husband  may  sell  his  wife's  chose  in  action,  but  can- 
not give  it  away  freed  from  the  incidents  of  the  marriage. 
This  distinction  rests  on  the  indisputable  authority  of  Burnett 
V.  Kinnaston,  (2  Vern.  401  ;)  Garforth  v.  Bradley,  (2  Ves. 
675 ;)  Bates  v.  Dandy,  (2  Atk.  207,)  and  many  other  cases. 
In  Jewson  v.  Moulson,  (2  Atk.  417,)  Lord  Hardwicke  says  it  is 
difficult  to  reconcile  the  cases  on  the  subject  of  the  wife's  prop- 
erty in  action,  but  that  one  thing  is  clear  throughout,  if  the 
husband  make  a  voluntary  assignment  of  it,  the  assignee  will 
stand  in  the  place  of  the  husband.  And  in  Packer  r.Wynd- 
ham,  (Prec.  in  Ch.  412,)  the  reason  is  said  to  be  because  a 
314 


Jane  1,1820.]        OF  PENNSYLVANIA.  281 

[Hartman  v.  Dowdel,  with  notice  to  Hawk.] 

chose  in  action  is  not  assignable  at  law ;  and,  without  a  valuable 
consideration  paid,  equity  will  not  interpose  against  the  conjugal 
rights  of  the  wife.  An  equitable  assignment  is  a  declaration  of 
trust,  (Co.  Litt.  232,  note  1,)  or  rather  an  agreement  that  the 
assignee  shall  receive  the  money  to  his  own  use,  which  equity 
will  execute,  or  not  according  to  circumstances,  (Pow.  on  Cont. 
191,  192,)  but  never  in  favour  of  a  bare  volunteer,  except 
against  the  assignor  or  those  claiming  under  him,  (1  Fonb,  203,) 
and  not  consequently  against  a  wife,  who  claims  paramount. 
Hence,  I  apprehend,  the  difference  between  *an  equi-  r*9Qo"| 
table  assignment  which  requires  payment  of  a  consider-  ^  -' 
ation,  and  a  release  which  is  effectual  at  law  without  receipt  of 
the  money. 

That  an  assignment  in  discharge  of  a  debt  is  on  a  valuable 
consideration,  and  that  an  assignment  as  a  pledge  or  collateral 
security  is  not,  was  decided  by  this  court  in  Petrie  v.  Clarke,  (1 1 
Serg.  &  Rawle,  377.)  Now  what  consideration  was  there  here  ? 
The  assignment  was  clearly  as  a  collateral  security,  the  assignor 
remaining  liable  till  the  debt  should  be  discharged  by  actual 
payment.  No  other  terms  were  imposed  than  that  the  assignee 
should  account  for  the  surplus  after  satisfaction  had.  The  as- 
signment neither  was  a  benefit  to  the  assignor,  nor  a  prejudice 
to  the  assignee.  It  rested  on  a  moral  obligation  which  binds  to 
payment  of  debts,  and  which,  though  a  good  foundation  for  an 
express  contract,  would  be  insuificient  to  raise  a  promise  by  im- 
plication of  law.  The  assignment,  therefore,  was  on  good  con- 
sideration merely,  which  is  insufficient  to  sustain  it  against  any 
one  but  the  representatives  of  the  assignor. 

Judgment  affirmed. 

Cited  by  Counsel,  1  Penn.  R.  374;  2  Ash.  460 ;  4  W.  127 ;  6  W.  132 ;  7  W! 
119;  1  W.  &  S.  255;  3  W.  &  S.  282,  458;  4  W.  «&  S.  19;  7  W.  &  S.  169;  3 
Barr,  138;  5  Barr,  263;  10  Barr,  374;  4  H.  369;  9  H.  249;  15  S.  398;  27  S. 
381 ;  3  O.  205  ;  1  W.  N.  C.  45  ;  1  W.  N.  C.  148. 

Cited  by  the  Court,  5  Barr,  140 ;  10  Barr,  195 ;  7  C.  233 ;  3  Wr.  357  ;  4  Wr. 
43 ;  23  S.  162 ;  2  N.  249;  s.  c.  4  W.  N.  C.  87;  8  N.  417  ;  s.  c.  7  W.  N.  C.  187  ; 
4  W.  N.  C.  350. 

Discussed  by  the  Court,  4  R.  470 ;  6  N.  108. 

The  principle  of  this  case  was  examined  at  length,  and,  after  a  careful  re- 
view of  the  English  authorities,  affirmed,  in  4  R.  470. 

The  peculiar  facts  of  that  case,  however,  led  the  court  to  establish  an  ex- 
ception, and  it  was  held  that  a  voluntary  assignment  by  the  husband  of  the 
wife's  choses  in  adicm  in  trust  for  the  'frife,  was  such  a  disposition  of  them  that 
a  subsequent  husband  could  not  claim  them  as  against  the  wife. 

An  assignment  by  a  husband  in  trust  for  creditors  will  not  carry  his  wife's 
closes  in  action,  unless  they  are  expressly  included :  10  Barr,  373 ;  nor  will  an 
assignment  by  him  under  the  insolvent  laws :  1  H.  560.  Where  the  first  as- 
signment purpm-ts  to  be  for  value,  a  second  assignee  for  valv^  is  protected : 
4H.  365.    . 

315 


282  SUPREME  COURT  [Lancastery 

[Hartman  v.  Dowdel,  with  notice  to  Hawk.] 

An  assignment  by  the  husband  of  his  wife's  choaes  in  action,  as  collateral 
security  for  a  note  given  for  money  borrowed  at  the  time,  bars  the  wife's  right 
if  the  husband  die  without  paying  the  debt  and  freeing  the  collateral :  7  C. 
228.  And  it  was  held,  even  oefore  the  Act  of  1848,  that  a  husband  who  had 
not  reduced  into  possession  his  wife's  personalty  could  not  will  it  away  from 
her:  6  N.  106. 


[Lancasteb,  June  1, 1829.] 
The  Commonwealth  against  Aurand. 

APPEAL. 

Under  the  provisions  of  the  act  of  the  30th  of  March,  1811,  to  amend  and 
consolidate  the  several  acts  relating  to  the  settlement  of  public  accounts,  &c., 
it  is  not  necessary  that  an  account  should  be  revised  and  examin^  by  the  state 
treasurer  in  person.     It  may  be  done  by  deputy. 

Appeal  by  the  defendant  from  the  decision  of  Rogers,  J., 
holding  a  Circuit  Court  for  Berks  county.  Action  of  assumpsit. 
Plea  non  assumpsit.  The  suit  was  to  recover  the  alleged  amount 
of  militia  fines  in  the  hands  of  the  defendant,  as  late  deputy 
marshal.  By  act  of  Congress  of  the  4th  of  May,  1822,  all  the 
right  of  the  United  States  to  fines  assessed  upon  citizens  of  the 
state  of  Pennsylvania  for  non-performance  of  militia  duty,  dur- 
ing the  late  war,  were  vested  in  the  said  state,  to  be  recovered 
by  the  same,  under  such  regulations,  provisions,  and  restrictions, 
as  shall  be  prescribed  by  the  legislature  thereof.  Whereupon, 
by  act  of  assembly  of  the  1st  of  April,  1823.  (Pamph.  Laws, 
1822-3,  page  274,)  the  auditor-general  was  "authorized  and  re- 
quired to  take  legal  measures  to  recover  all  moneys  in  the  hands 
of  those  who  now  are,  or  heretofore  have  been  marshals,  or 
deputy  marshals,  or  which  may  be  in  the  hands  of  their  legal 
representatives,  which  may  have  been  collected  from  the  fines 
aforesaid,  after  deducting  the  expense  of  assessing  and  collect- 
r^noo-i  irig  the  same ;  and  also  to  settle  and  adjust  the  *ac- 
•-  J  counts  of  the  said  marshals  and  deputy  marshals,  for 
moneys  by  them  collected  as  aforesaid,  under  the  provisions  of 
the  act  of  the  30th  of  March,  1811,  entitled,  *An  act  to  amend 
and  consolidate  the  several  acts  relating  to  the  settlement  of  the 
public  accounts  and  the  payment  of  the  public  moneys,  and  for 
other  purposes,'  and  for  this  purpose  he  is  hereby  authorized  and 
required  to  exercise  the  same  powers  for  compelling  the  said 
marshals  and  deputy  marshals,  or  their  legal  representatives,  to 
render  their  respective  accounts,  and  for  procuring  the  attend- 
ance of  persons,  whether  party  or  witnesses,  and  the  exhibition 
316 


June  l,lS2d.]        OF  PENNSYLVANIA.  283 

[The  Coiiimonwealtli  v.  Aurand.] 

and  delivery  of  books,  accounts,  documents,  and  papers  which 
have  any  relation  to  or  connection  with  the  said  accounts  or 
fines,  and  which  he  may  deem  necessary  in  the  investigation 
and  adjustment  of  the  same,  as  are  or  may  be  exercised  in  the 
case  of  other  debtors  or  delinquent  public  officers  of  this  com- 
monwealtii :  Provided,  that  no  proceedings  shall  be  instituted 
against  them  or  any  of  them,  previous  to  the  1st  day  of  August 
next :  And,  provided,  also,  that  in  settling  and  adjusting  tlie 
accounts  aforesaid,  the  accounting  officers  shall  allow  a  credit  to 
the  several  marshals  and  deputy  marshals,  for  all  sums  hereto- 
fore paid  by  them  to  the  officers  composing  the  courts-martial, 
held  under  the  authority  of  the  laws  of  the  United  States,  and 
the  laws  of  the  commonwealth  of  Pennsylvania,  for  the  trial  of 
delinquent  militia  men." 

The  copy  of  the  account  given  in  evidence,  was  as  follows : 

"  Peter  Aurand,  Esq.,  late  deputy  marshal  for  the  counties  of 
Berks  and  Schuylkill,  in  account  with  the  commonwealth  of 
Pennsylvania,  for  fines  recovered  from  the  citizens  of  this  state 
for  non-performance  of  militia  duty  during  the  late  war  with 
Great  Britain. 

Dr. 

"  To  amount  of  fines  recovered  in  the  2d  Brigade, 

6th  Division,  P.  M.  List  1, ^14,528.00 

"  To  amount  of  fines  recovered  in  the  95th  Regi- 
ment, 1st  Brigade,  6th  Division,  per  List  No.  2,  3,200.00 

"  To  amount  of  fines  recovered  in  the  143d  Peg- 
iraeut,  1st  Brigade,  6th  Division,  per  List 
No.  3, 2,801.00 


Cr.  $20,529.00 

"  By  cash  paid  John  Smith,  Esq.,  Mar- 
shal, per  receipt  dated  20th  of  June, 
21st,  1827,  No.  1, $2,000.00 

"  By  cash  paid  John  Smith,  Esq.,  Mar- 
shal, per  receipt  dated  22d  of  April, 
1818,  No.  2, 5,000.00 

*"  By  amount  paid  to  officers  of  Court  [*284] 

Martial,  2d  Brigade,  6th  Division,    .    5,756.95 

"By  amount  paid  to  officers  of  Court 
Martial,  143d  Regiment,  1st  Brigade, 

6th  Division, 428.51 

317 


284  SUPREME  COURT  [Lancaster, 

[The  Commonwealth  v.  XurancL] 

"By  amount  paid  to  officers  of  Court 

Martial,  95th  Regiment,  Ist  Brigade, 

6th  Division,  No.  3, 188.59 J 

"By  attorneys'  fees  on   suits   brought 

against  the  Deputy  Marshal,  No.  4,  .  50.00 

"  By  amount  paid  for  postage,  printer's 

bills,  &c.,  per  No.  5, 81.71 

"By  commissions  on  $13,529.00,  at  five 

per  cent, 676.45     14,182.21^ 

Due  Commonwealth, $6,346. 78J 

"  Settled  and  entered        ^  Approved  and  entered. 

David  Mann.  I    A.  M.  Piper  for  William  Clark, 

Auditor  General's  Office,     |        Treasurer.     Treasury  Office, 
November  1st,  1825.       J        November  1st,  1825. 
"  November  1st,  1825.  Auditor  General's  Office. 

"  I  certify  the  foregoing  to  be  a  true  copy  of  the  original  re- 
maining on  file  in  this  office. 

"  Witness  my  hand  and  seal  of  office  the  day  and  year  afore- 
said. David  Mann. 

"  Auditor  General." 

The  verdict  M^as  for  the  commonwealth  for  damages  and  in- 
terest seven  thousand  five  hundred  and  seventy-six  dollars  and 
ninety-sev^n  cents ;  his  honour,  the  judge,  having  decided  on  the 
trial,  that  the  account  was  sufficient  to  support  the  action,  that 
the  settlement,  not  having  been  appealed  from,  was  final  and 
conclusive,  and  that  the  same  was  sufficiently  approved  and  en- 
tered at  the  treasury  office.  He  therefore  refused  a  new  trial, 
which  was  asked  for  by  the  defendant,  and  this  decision  was  the 
error  complained  of. 

Darling,  for  the  defendant. — The  questions  are  two  :  1st,  were 
the  accountant  officers,  in  their  summary  jurisdiction  against 
Aurand,  bound  to  proceed  under  the  provisions  of  the  act  of  the 
30th  of  March,  1811  ?  (5  Sra.  L.  228  ;  Purd.  Dig.  690.)  2d. 
Have  they  so  proceeded? — By  the  act  of  1823,  the  power  is  not 
given  to  the  auditor  general  singly.  Reason  and  justice  would  seem 
to  require,  that  debtors  to  the  state,  by  assignment  and  transfer, 
r^rtoc-i  should  *have  means  of  protection  equal  with  others.  But 
•-  '  J  the  express  words  of  the  act  can  leave  no  doubt.  The 
auditor  general  shall  take  legal  measures  for  tlie  collection  of 
the  fines,  and  shall  settle  and  adjust  the  accounts  of  the  marshals 
and  deputy  marshals,  under  the  provisions  of  the  act  of  the  30th 
of  March,  1811,  entitled  an  act  to  amend,  &c.,  and  shall  exer- 
318 


Jvm  1,  1829.]        OF  PENNSYLVANIA.  285 

[The  Commonwealth  v.  Aurand.] 

cise  the  same  power.,  as  may  be  exercised  in  the  case  of  other 
debtors  aud  delinquent  officers  of  the  commonwealth.  Then, 
have  the  terms  of  the  act  of  1811  been  complied  with?  The 
third  section  directs,  that  any  public  account  examined,  adjusted, 
aud  entered,  by  the  auditor  general,  shall,  together  with  the 
vouchers  aud  all  other  papers  and  information  appurtenant 
thereto,  be  submitted  to  the  state  treasurer,  for  his  revision  and 
approbation  ;  and,  in  order  that  the  state  treasurer  may  be  en- 
abled to  revise  aud  examine  the  accounts  so  submitted  to  him,  he 
is  hereby  invested  with  powers  similar  to  those  vested  in  the 
auditor  general  by  this  act.  The  powers  thus  given  to  the  state 
treasurer  are  mentioned  in  the  second  and  fourth  sections ;  and 
among  them  is  the  power  to  enforce  the  production  of  books, 
accounts,  and  documents,  and  the  appearance  of  parties  and  wit- 
nesses on  pain  of  imprisonment.  By  the  12tli  section,  "the 
balance  due  to  the  commonwealth,  on  every  account  settled 
agreeably  to  this  act,  shall  be  deemed  and  adjudged  to  be  a  lien 
from  the  date  of  the  settlement  of  such  account  on  all  the  real 
estate  of  the  person  or  persons  indebted,  and  on  his  or  their  sure- 
ties throughout  this  commonwealth."  By  the  5th  section  it  is 
made  the  duty  of  the  state  treasurer  "  to  return  such  accounts, 
vouchers,  &c.,  to  the  auditor  general,  within  a  reasonable  time, 
signed  by  him,  if  he  approve  thereof;  but  if  he  disapprove  of 
any  account,  he  shall  state,  in  writing,  the  reasons  for  such  dis- 
approbation ;  and  if,  upon  reconsideration  of  the  account  so  dis- 
approved of  by  the  state  treasurer,  the  auditor  general  and  state 
treasurer  cannot  agree,  it  shall  be  the  duty  of  the  auditor  gen- 
eral to  lay  the  account,  and  vouchers,  and  other  papers  appur- 
tenant thereto,  before  the  governor,  together  with  his  own  rea- 
sons and  the  reasons  of  the  state  treasurer  respecting  the  same, 
and  the  decision  of  the  governor  thereon  shall  be  conclusive  as 
to  the  said  officers,  &c." 

Now,  it  appears  that,  in  this  case,  the  balance  against  Aurand 
is  fixed,  by  the  auditor  general,  and  by  A.  M.  Piper,  for  William 
Clark,  treasurer,  when  it  is  not  stated,  nor  can  it  be  known  ju- 
dicially under  what  pretence  of  authority  A.  M.  Piper  acted. 
The  treasurer  is  appointed  by  the  legislature.  There  is  no 
power  of  delegation  in  the  act  of  assembly.  If  he  can  thus  be 
permitted  to  throw  off  his  responsibility,  the  auditor  general  may 
do  the  same ;  and,  if  this  is  lawful,  two  of  the  clerks  in  the  office 
may  enter  a  judgment,  binding  upon  the  real  estate  of  every 
debtor,  or  supposed  debtor,  and  their  sureties,  throughout  the 
commonwealth.  If  the  two  clerks  happen  to  differ  in  opinion, 
is  the  governor  to  be  called  on  to  settle  the  dispute  between 
them,  and  may  he  also  delegate  his  authority  to  another  ?     Here 

319 


286  SUPREINIE   COURT  [Lancaster, 

[The  Commonwealth  v.  Aurand.J 

r*2S('"l  ^^^^  ^^*  ^^  ^^  done  requintl  talent,  knowledge,  *re8ponsi- 
L  '  J  bility.  If  to  pronounce  a  judgment  binding  upon  real 
estate  throughout  the  commonwealth,  ex  parte  in  some  cases, 
and  without  appeal  in  others,  is  not  a  judicial  act,  it  will  be 
diliicult  to  name  an  official  act  which  cannot  be  performed  by 
deputy  or  substitute.  The  rules  of  law  on  the  subject  will  hardly 
be  contested.  A  judicial  officer  cannot  make  a  deputy,  because 
his  judgment  is  relied  on.  5  Bac.  Ab.  Offices  and  Officers,  L. 
All  holding  judicial  authority  must  hold  their  courts  in  their 
proper  persons,  and  cannot  depute,  nor  in  any  way  transfer 
their  power  to  another.  Ibid.  A  coroner  cannot  make  a 
deputy,  nor  an  escheator,  because  they  are  judicial  offices,  which 
they  must  exercise  in  person.  Ibid.  Justices  of  the  peace  can- 
not delegate  a  certain  number  of  themselves,  and  invest  them 
with  a  power  to  make  rates  and  orders.  Ibid.  One  holding 
the  office  of  clerk  of  the  papers  cannot  make  a  deputy  ;  for  it 
requires  knowledge  and  skill.  16  Vin.  Ab.  title  Officer,  J.  11. 
An  office  which  concerns  the  king's  revenue,  cannot  be  executed 
by  deputy.  Ibid.  12.  Sheriff  must  execute  a  writ  of  partition 
in  person ;  so  a  writ  of  inquiry  of  waste,  admeasurement  of 
dower,  and  a  writ  of  re-disseisin  ;  for  he  is  in  loco  judieis.  6  Bac. 
Ab.  Sheriff,  H.  3. 

Smith  and  Buchanan,  for  the  commonwealth. — Under  the  act 
of  1823,  no  approbation  of  the  state  treasurer  was  necessary  to 
this  settlement  of  Aurand's  account.  If  it  M^as  necessary,  such 
approbation  has  here  been  sufficiently  given  in  the  name  of  A. 
M.  Piper,  chief  clerk.  The  state  treasurer  is  not  mentioned  in 
the  act  of  1823.  By  this  act  all  the  powers  vested,  by  the  law  of 
1811,  in  the  three  officers,  including  the  governor,  are  conferred 
on  the  auditor  general  alone.  But,  supposing  further  approba- 
tion to  have  been  necessary,  here  it  has  been  given.  By  the 
same  act  of  1811,  sect.  42,  in  case  the  state  treasurer  shall  die 
during  the  recess  of  the  legislature,  the  chief  clerk  in  the  treas- 
urer's office,  having  taken  the  oath  or  affirmation  of  office,  and 
given  the  requisite  security,  shall  be  authorized  to  do  the  duties 
of  state  treasurer,  until  another  shall  be  appointed  by  the  legis- 
lature. The  authorities  cited  against  us  are,  some  of  them,  not 
applicable,  and  some  of  them  are  not  law  in  Pennsylvania. 
Who  here  ever  doubted  whether  a  coroner  can  appoint  a  deputy? 
We  have  a  common  law  of  our  own,  which  has  grown  up  with 
the  growth  of  the  state.  Commonwealth  v.  Greason,  5  Serg.  & 
Rawle,  333.  A  deputy  clerk  of  the  peace  may  administer  the 
oath  on  registering  a  slave.  In  Reigart  v.  M'Grath,  1 6  Serg. 
&  Rawle,  65,  a  deputy  of  the  clerk  of  the  Mayor's  Court  ad- 
ministered the  oath  on  the  appeal,  and  it  was  held  good.  In 
320 


/uwe  1,1829.]         OF   PENNSYLVANIA.  286 

[The  Commonwealth  v.  Aurand.] 

the  commonwealth  for  use  of  Allen  v.  Finney,  at  the  last  term 
of  this  court,  in  this  place,  it  was  decided,  that  a  reco<ruizance, 
taken  by  a  mere  clerk  in  the  office,  was  valid ;  yet  taking  a  re- 
cognizance is  called  a  judicial  act.  1  P.  Wms.  334.  The 
deputy  prothonotary  appoints  arbitrators,  taxes  bills  of  costs, 
enters  judgments.  The  mode  of  settling  public  accounts,  adopted 
in  this  case,  has  been  in  use  for  *a  series  of  years.  It  is  r^oq-i 
a  practice  dictated,  not  by  convenience  only  but  by  ne-  l  *-  J 
cessity.  The  docti-ine,  and  the  reason  for  it,  is  fully  developed, 
by  the  Chief  Justice  in  Reigart  v.  M'Grath,  16  Serg.  &  Rawle, 
65.  And  the  same  necessity  has  produced  a  similar  change  in 
England.  There,  even  as  to  sheriffs,  it  is  admitted  to  be  im- 
possible that  the  high  sheriff  should  execute  every  duty  person- 
ally, and  that  therefore  the  deputy  must  have  the  same  powers. 
He  may  make  bills  of  sale,  return  executions  and  other  writs, 
and,  generally,  do  everything  which  the  sheriff  himself  can  do. 
6  Bac.  Ab.  Sheriff,  H.  3.  And  per  Lord  Mansfield,  a  mere 
clerk  of  the  deputy  was  permitted  to  make  a  valid  assignment 
of  a  bail  bond,  where  it  appeared  that  such  was  the  usual  prac- 
tice. Ibid.  A  deputy  sheriff  may  hold  an  inquest  of  damages. 
2  Johns.  Rep.  63.  Now,  if  arguments  of  convenience  and  ne- 
cessity apply  to  the  offices  of  prothonotary  and  sheriff,  they 
apply  much  more  forcibly  to  the  present  case.  The  operations 
of  government  may  be  stopped  upon  the  rules  of  strictness 
here  insisted  on.  Except  fixed  salaries,  no  money  could  be 
paid,  and  none  received,  at  the  public  treasury,  in  case  of  sick- 
ness or  absence  of  the  auditor  general  or  treasurer.  Though 
it  is  believed,  in  point  of  fact,  that  the  treasurer  never  investi- 
gates an  account,  or  examines  the  vouchers,  unless  for  some 
special  reason,  or  unless  the  party  implicated  makes  objections, 
yet  we  contend  that  if  his  duty  required  him  to  investigate,  in 
this  case  such  duty  will  be  presumed  to  have  been  done.  The 
entry  by  another  hand  will  be  supposed  to  have  been  by  direc- 
tions of  the  chief  officer  till  the  contrary  appears.  Here  the 
account  has  been  returned  to  the  auditor  general  from  the  trea- 
sury office,  which  implies  the  approbation  of  the  treasurer.  Be- 
sides, there  is  no  appeal  by  Aurand  :  no  application  to  correct 
mistakes,  which,  by  the  act  of  1811,  might  have  been  done 
within  a  year  if  any  mistakes  existetl.  That  to  settle  an 
account  requires  discretion  is  admitted  :  that  it  is  a  judicial  act 
is  denied.  These  officers  give  security  for  performance  of  their 
duty  ;  which  is  never  given  by  judges.  No  one  has  heard  of  a 
judicial  officer,  in  case  of  death,  being  succeeded  by  the  chief 
clerk.  If  the  deputy  or  substitute  does  anything  injurious,  the 
principal  shall  answer.  5  Bac.  Ab.  Offices,  L. 
VOL.  I.— 21  321 


287  SUPREME  COURT  [Lancaster, 

[The  Commonwealth  v.  Aurand.] 

Baird,  for  the  defendant,  in  rej)ly. — The  oj)€rati()ns  of  gov- 
ernment will  not  be  interfered  with  by  a  reversal.  It  is  not  a 
question  alx)ut  a  payment  due  by  the  comnionwealtli  to  an  indi- 
vidual. It  is  the  case  of  a  very  high  and  extraordinary  judi- 
cial power  delegated  to  those  who  are  not  otherwise  judicial 
officers  :  a  power  claimed  to  pronounce  a  decree,  ex  parte,  bind- 
ing and  conclusive,  and  which  is  to  be  incontrovertible  by  any 
evidence  whatever,  and  a  lien  from  its  date  throughout  the  com- 
monwealth, not  only  upon  the  party  who  niay,  perhaps,  have  had 
notice,  but  upon  his  sureties,  without  the  least  pretence  of  notice 
to  them.  The  question  is,  whether  such  decree  can  be  given 
except  by  those  to  whom  the  power  is  expressly  and  exclusively 
r*288T  S^^^°  ''^y  ^^^®  ^^  ®^  assembly.  *Suppose  in  fact,  what 
'-  ^  doqs  not  appear,  nor  is  attempted  to  be  shown,  that  the 
state  treasurer  was  disabled  by  sickness  or  otherwise  from  de- 
ciding personally  in  this  case,  still  we  contend  that  the  special 
and  great  prerogative  of  obtaining  a  judgment  without  a  trial, 
must  be  exerted  in  the  manner  and  under  the  conditions  pre- 
scribed by  the  legislature :  otherwise  the  commonwealth  must 
be  content  with  the  usual  remedy  of  suing  in  the  courts  of  law. 
The  sentence  of  the  auditor  general  alone,  can  create  no  lien. 
The  42d  sect,  which  has  been  relied  on,  enabling  the  chief  clerk 
to  act  upon  the  death  of  the  treasurer,  upon  taking  the  oath  of 
office  and  giving  security,  proves  that  such  death,  oath,  and 
security,  are  necessary  to  qualify  him  to  act  at  all  as  state  trea- 
surer. Costs  are  given  by  the  law  and  the  judgment  of  the 
court ;  and  because  the  clerk  of  the  prothonotary  may  tax  the 
bill,  it  will  hardly  follow  that  he  may  give  judgment  by  default, 
for  debt  and  costs  both,  under  pretence  that  the  judge  cannot 
be  upon  the  bench.  We  deny  the  existence  of  any  necessity 
for  pronouncing  a  summary  judgment  against  a  supposed  debtor 
to  the  state,  by  any  officer  or  clerk  not  authorized.  The  counsel 
for  the  commonwealth  seem  not  much  to  have  relied  on  the 
act  of  1823,  as  giving  the  power  to  the  auditor  general  alone. 
That  act  expressly  directs  the  accounting  officers  to  give  credit, 
&c.  It  declares  in  so  many  words,  that  the  proceedings  shall  be 
under  the  act  of  1811.  The  officers  in  this  case  have  atFecte<l 
to  act  throughout  under  the  act  of  1811,  except  that  another 
person,  without  any  authority  has  undertaken  to  decide  the 
cause  and  pronounce  the  decree,  instead  of  the  treasurer,  who 
was  assigned  by  the  law  to  that  duty.  A  copy  of  the  account 
has  been  given  in  evidence  under  the  act  of  1811.  Interest 
after  three  months,  is  charged  under  the  act  of  1811.  A  pri- 
ority of  lien  upon  Aurand's  land  is  asked  for  and  enforced 
under  the  same  act ;  no  other  law  exists  giving  such  priority. 
Practice  and  usage  in  the  offices  have  been  mentioned.  Without 
322 


Junel,1829.]         OF  PENNSYLVANIA.  288 

[The  Commonwealth  v.  Aurand.] 

admitting  any  such  usage,  we  say  if  such  usage  exists,  it  is  as 
directly  against  every  principle  of  justice,  as  it  is  against  the 
words  of  the  law,  and  ought  to  be  al)olished.  But  we  deny  the 
usage  itself.  No  instance  is  shown  of  an  attempt  previous  to 
this  case,  to  enforce  a  judgment  against  a  public  debtor  rendered 
by  the  auditor  general  and  a  clerk  of  the  treasurer. 

GiBSOx,  C.  J.,  delivered  the  opinion  of  the  court. 

I  consider  the  point  made  here  as  already  determined,  there 
being  no  difference  between  the  present  case  and  Reigart  v. 
M'Grath,  except  that  the  necessity  which  dictated  the  practice 
there  was  not  near  so  urgent.  Were  the  powers  of  the  trea- 
surer limited  to  a  discharge  of  his  duties  in  person,  the  whole 
fiscal  concerns  of  the  government  would  suffer  derangement : 
an  evil  not  to  be  endured.  The  existing  practice  is  shown  to 
be  coeval  with  the  constitution ;  and  if  the  legislature,  having 
the  appointment  of  the  officer  committed  to  it,  and  the  super- 
intendence of  his  business  peculiarly  within  *its  prov-  r^nocn 
ince,  has  thought  fit  to  acquiesce,  it  would  be  an  L  J 
unwarrantable  exercise  of  power  in  favour  of  a  supposed 
theoretic  principle  for  this  court  to  declare  settlements  like  the 
present  void,  and  thus  impair  the  title  of  the  state  to  millions 
received  or  secured  through  their  instrumentality.  There  is, 
however,  no  principle  with  which  the  practice  is  not  in  strict  ac- 
cordance. The  adjustment  of  an  account  is  no  further  judicial 
than  the  taxation  of  a  bill  of  costs,  which  may,  unquestionably, 
be  by  the  prothonotary's  clerk.  In  regard,  however,  to  the 
militia  fines  transferred  by  the  act  of  congress,  passed  the  4th 
of  May,  1822,  it  is  perfectly  clear  that  the  auditor-general  is 
not,  as  has  been  contended,  exclusively  the  officer  to  settle  the 
accounts.  By  the  act  of  assembly  passed  the  1st  of  April,  1823, 
the  accounts  are  subjected  to  all  the  provisions  of  the  general 
law  of  1811 ;  but  the  allowance  of  the  account  by  the  treasurer 
being  unquestionably  valid  in  this  particular  instance,  there  is 
no  pretence  for  sending  the  cause  to  another  jury. 

Tod,  J.,  dissented. 

Judgment  affirmed. 

Cited  by  Counsel,  3  Barr,  324 ;  3  C.  274 ;  13  W.  N.  C.  479. 

Approved  and  followed,  8  W.  63  ;  2  8.  454 ;  12  W.  X.  C.  329 ;  13  W.  N.  C. 
479. 

It  was  said,  in  12  W.  N.  C.  p.  320,  that  this  case  had  probably  governed  tlie 
practice  for  fifty  years,  and  that  under  it  all  ministerial  acts  might  be  done  by 
the  deputies  in  the  state  offices.  Tlierefore,  imtler  the  Act  June  7, 1879  (p.  1. 
113),  the  clerks  can  assess  tlie  tax  on  corporations  after  the  latter  have  made 
their  reports,  and  it  is  no  defence  to  these  taxes  that  they  were  not  examined 
and  confirmed  by  the  attorney-general  and  state  treasurer  in  person  :  Hamilton 
Co.  V.  Commonwealth,  12  W.  N.  C.  328;  P.  &  K.  K.  R.  r.  Commonwealth,  13 
Id.  478. 

323 


289  SUPREME  COURT  [iawccwrfcr, 


[Lancaster,  Juke  1, 1829. J 
Wike  against  Lightner. 

IN  ERROR. 

A  writ  of  error  does  not  lie  to  the  Circuit  Court. 

The  plaintiff  in  error  was  defendant  below,  in  an  action  of 
ejectment.  A  verdict  having  passed  against  him  in  the  Circuit 
Court  of  Lancaster  county,  held  by  Huston,  J.,  he  sued  out  a 
writ  of  error  which  Buchanan  now  moved  to  quash. 

In  support  of  the  motion,  Rogers  and  Buchanan  contended, 
that  a  writ  of  error  does  not  lie  to  the  circuit  court  where  the 
party  has  a  remedy  by  appeal,  which  he  had  in  the  present 
instance.  Act  of  the  20th  of  March,  1799,  sect.  4.  By  the 
act  of  the  8th  of  April,  1826,  sect.  1,  circuit  courts  are  revived, 
and  the  whole  system  called  again  into  action  precisely  as  if  the 
act  of  1799,  had  never  been  repealed,  and  under  that  act  the 
remedy  given  to  the  party  who  thought  himself  aggrieved  by 
the  judgment  of  the  Circuit  Court,  was  an  appeal  in  the  manner 
therein  prescribed.  The  act  of  the  11th  of  March,  1809,  sect. 
6,  Purd.  416,  points  out  the  courts  to  which  a  writ  of  error  may 
be  taken,  and  those  also  from  which  an  appeal  lies,  which  it  has 
been  determined  does  not  lie  from  the  Common  Pleas.  Lessee 
of  McClemmons  v.  Graham,  3  Binn.  88.  Where  an  appeal  is 
given  by  statute,  it  is  an  implied  repeal  of  the  writ  of  error. 
It  has  therefore  been  decided  in  Massachusetts,  that  a  writ 
r*9Qm  *^^  error  does  not  lie  to  the  Common  Pleas  in  those 
•-  J  cases  in  which  an  appeal  is  given.  4  Mass.  Rep.  171, 
516;  6  Mass.  Rep.  4;  9  Mass.  Rep.  228;  11  Mass.  Rep.  300, 
512.  The  circuit  courts  are  intended  as  a  substitution  for  the 
courts  of  Nisi  Prius,  the  appeal  being  a  mode  of  getting  the 
motion  for  a  new  trial  in  arrest  of  judgment,  &g.,  before  the 
court  in  bank.  Act  of  the  17th  of  March,  1722,  1  Sm.  Ij.  139, 
140;  Act  of  the  28th  of  January,  1777,  Ibid.  247;  Act  of 
the  25th  of  September,  1826  ;  Act  of  the  13th  of  April,  1791, 
3  Smith's  Laws,  28.  On  an  appeal  from  the  decision  of  the 
Circuit  Court  upon  a  motion  in  arrest  of  judgment,  the  Supreme 
Court  is  in  the  same  situation  as  the  judge  of  that  court  when 
the  motion  was  made,  and  may  direct  the  verdict  and  judgment 
to  be  entered  as  he  might  have  done.  The  act  of  the  21st  of 
March,  1806,  sect.  13,  4  Sm.  Laws,  332,  is  conclusive  upon 
324 


JtwM5 1,1829.]        OF  PENNSYLVANIA,  290 

[Wike  V.  Lightaer.] 

the  question.  It  declares  that  common  law  remedies  shall  be 
superseded  in  all  cases  where  a  remedy  is  provided  by  act  of 
assembly. 

Hopkins^  eontraj  said  that  a  writ  lies  to  every  court  of  record  • 
which  proceeds  according  to  the  course  of  the  common  law. 
The  jurisdiction  of  this  court  cannot  be  taken  away  by  impli- 
cation. The  Court  of  Errors  and  Appeals  had  a  supervising 
power  over  the  Supreme  Court.  Act  of  the  13th  of  April, 
1791,  sect.  16,  3  Sm.  L.  32,  Error  will  lie  even  to  a  court  of 
Nisi  Prius. 

The  opinion  of  the  court  was  delivered  by 

Gibson,  C.  J. — In  substituting  circuit  courts  for  courts  of 
Nisi  Prius,  to  which  a  writ  of  error  did  not  lie,  no  alterations 
were  intended  but  such  as  should  be  necessary  to  accomplish  two 
things — to  enable  the  judge  who  tried  the  issue,  to  render  judg- 
ment, and  to  restrict  the  lien  of  it  to  the  county  in  which  the 
record  should  be.  Hence  an  appeal  was  particularly  provided, 
and  doubtless  to  preserve  to  the  court  in  bank,  the  immeasurable 
advantages  which,  as  a  means  of  correction,  the  motion  for  a 
new  trial  affords  in  comparison  with  the  writ  of  error ;  and  hence 
it  would  be  fair  to  imply  the  abrogation  of  the  latter  on  the 
ground  of  intention.  But  this  construction  which  has  bten  sus- 
toined  by  the  Supreme  Court  of  Massachusetts,  on  the  basis  of 
reason  and  good  sense,  is  expressly  enjoined  by  our  i^islature, 
who  have  subsequently  declared  that  remedies  provided  by  act 
of  assembly  shall  be  used  in  exclusion  of  remedies  at  the  com- 
mon law.  How  this  happened  to  be  thought  inapplicable  to  civil 
proceedings,  would  not  be  understood  by  any  one  who  did  not 
know  with  what  reluctance  the  courts  executed  laws  that  were, 
at  one  time  supposed  to  be  aimed  at  the  profession.  Its  terms 
are  broad  and  sweeping;  and  it  is  part  of  an  act  which  has  entirely 
changed  the  form  of  proceeding  iu'  debt,  assumpsit  and  eject- 
ment. Of  its  object,  those  who  remember  the  temper  of  the 
times,  can  best  judge.  But  whatever  may  have  been  the  reluct- 
ance *of  the  courts  then,  we  cannot  refuse  now  to  r*9Qi-i 
execute  the  plain  mandate  of  the  legislature.  There  '-  -■ 
is  no  escape  from  it  here  but  by  shoM'^ing  that  there  may  be 
error,  for  which  the  appeal  affords  no  remedy ;  and  were  any 
such  imaginable,  we  would  be  bound  to  allow  the  writ  for  its 
special  correction.  But  an  appeal  may  be  taken  in  every  case 
of  "  demurrer,  special  verdict,  case  stated,  point  reserved,  motion 
in  arrest  of  judgtaent,  or  for  a  new  trial,  or  to  set  aside  a  judg- 
ment, discontinuance,  or  non  pros;"  and  it  is  therefore  more 
extensively  remedial  than  even  the  writ  of  error.     As,  then,  it 

325 


291  SUPREME  CX)URT  [Lancaster, 

[Wike  V.  Lightner.] 

is  adequate  to  all  the  purposes  of  redress,  recourse  is  to  be  had 
to  it  exclusively. 

Tod,  J.,  dissented.  Writ  of  error  quashed. 

Cited  by  Counsel,  2  Par.  555 ;  6  VV.  385 ;  1  S.  98. 

Cited  by  the  Court,  1  M.  44,  197 ;  2  M.  63 ;  2  Par.  351 ;  6  Wh.  691 ;  1  N. 
453;  11  N.  145;  5  O.  295;  3  W.  N.  C.  246;  8  W.  N.  C.  123. 


[Lancaster,  June  1, 1829.] 

The  Commonwealth  against  Clarkson,  Administrator  of 

Passmore. 

APPEAL. 

Mutual  demands  extinguish  each  other  by  operation  of  law,  without  actual 
defalcation  by  the  act  of  the  parties. 

Therefore,  where  a  prothonotary  and  a  sheriff  received  fees  for  each  other 
during  their  continuance  in  office,  the  fees  received  by  the  prothonotar}-  for 
the  sheriflj  against  which  he  was  entitled  to  set  off  money  received  by  the 
sheriff  for  him,  were  held  to  have  been  fees  received  by  the  prothonotary  while 
in  office,  and  liable  to  taxation  under  the  act  of  the  10th  of  March,  1810,  al- 
though no  actual  settlement  of  accounts  took  place  between  them  until  long 
after  the  prothonotary  had  gone  out  of  office. 

Appeal  from  the  decision  of  the  Circuit  Court  of  Dauphin 
county. 

The  accounts  of  the  defendant's  intestate,  John  Passmore,  who 
had  been  prothonotary  of  the  Supreme  Court  for  the  Lancaster 
district,  and  of  the  Court  of  Common  Pleas  of  Lancaster  county, 
and  clerk  of  the  Orphans'  Court,  Quarter  Sessions,  and  Oyer  and 
Terminer,  in  and  for  the  county  of  Lancaster,  having  been 
settled  on  the  18th  of  May,  1824,  by  the  auditor  general  and 
state  treasurer,  who  found  a  balance  against  him  of  eight  thou- 
sand one  hundred  and  ninety-nine  dollars  and  thirteen  and  three- 
quarter  cents;  he,  on  the  28th  of  July,  1824,  entered  an  appeal 
to  the  Court  of  Common  Pleas  of  Dauphin  county,  under  the 
11th  section  of  the  act  entitled,  "  an  act  to  amend  and  consolidate 
the  several  acts  relating  to  the  public  moneys,  and  for  other  pur- 
poses," passed  on  the  30th  of  March,  1811. 

On  the  7th  of  April,  1819,  a  verdict  passed  against  the  de- 
fendant in  the  Circuit  Court  for  two  thousand  eight  hundred  and 
nineteen  dollars  and  sixty-seven  cents. 

r*9Q9i  *On  the  trial  it  appeared  that  John  Passmore  had 
^  -■  beei  appointed  prothonotary  of  the  Supreme  Court  for 
the  Lancastt "  district,  and  of  the  Court  of  Common  Pleas  for 
the  county  or  Lancaster,  and  also  clerk  of  the  Orphans'  Court, 
and  courts  of  Quarter  Sessions  and  Oyer  and  Terminer,  of  the 
326 


Ju,ael,U2d.]         OF   PE:>'XSYLVAXIA.  292 

[Thfi  Commonwealth  v.  Clarkaon,  Administrator  of  Passmore.] 

same  county,  ou  the  3d  of  Jauuary,  1809.  He  continued  to 
hold  the  office  of  clerk  of  the  Orphans'  Court,  until  the  6th  of 
February,  1816,  of  prothonotary  of  the  Supreme  Court  and 
clerk  of  tlie  courts  of  Oyer  and  Terminer  and  Quarter  Sessions, 
until  the  4th  of  March,  1817,  and  of  prothonotary  of  the  court 
of  Common  Pleas  until  the  10th  of  April,  1818. 

Henry  Reigart,  was  sheriff  of  Lancaster  county  from  October, 
1812,  till  October,  1815  ;  and  George  Hambright  was  sheriif  of 
the  said  county  from  October,  1815,  till  October,  1818. 

Among  the  items  contained  in  the  account  settled  by  the  au- 
ditor general  and  state  treasurer,  were  the  following,  viz.  : 

"  For  amount  of  fees  collected  for  Henry  Reigart, 

former  sheriff  of  Lancaster  county,     ....  $1,967.87 

"  For  fees  collected  for  George  Hambright,  late 

sheriff  of  Lancaster  county, $2,201.34" 

These  fees  were  received  by  John  Passmore,  in  the  course  of 
his  business,  and  during  his  continuance  in  office,  for  sheriffs 
Reigart  and  Hambright.  During  their  continuance  in  office  they 
had  also  received  fees  for  Mr.  Passmore.  A  considerable  time 
after  Mr.  Passmore  had  gone  out  of  office,  he  settled  with  these 
gentlemen,  and  then,  and  not  until  then,  they  respectively  agreed, 
that  these  sums  should  be  credited  in  their  accounts  against  them. 
It  appeared  from  Mr.  Passmore's  return  to  the  auditor  general, 
which  was  read  in  evidence  on  the  trial  by  the  counsel  for  the 
commonwealth,  that  .he  had  repeatedly  urged  settlements  at 
an  earlier  period  with  Mr.  Reigart  and  Mr.  Hambright,  but 
could  not  accomplish  his  purpose  on  account  of  their  embarrass- 
ments. 

The  question  for  the  decision  of  the  court  was  whether  the 
two  sums  above  stated  were  taxable  ?  The  decision  of  the  Cir- 
cuit Court  being  against  the  defendant,  he  entered  his  appeal, 
because  the  judge  instructed  the  jury  that  the  plaintiff  was  en- 
titled to  a  verdict  for  one-half  of  the  amount  of  those  sums, 
when  he  ought  to  have  instructed  them  that  they  were  not  liable 
to  taxation. 

Buchanan,  for  the  appellant. — The  construction  of  the  act  of 
the  10th  of  March,  1810,  Purd.  Dig.  608,  being  that  those  fees 
only  are  taxable  which  were  received  by  the  officer  during  his 
continuance  in  office,  as  determined  in  Heister  v.  The  Common- 
wealth, the  question  on  which  the  decision  of  this  cause  depends, 
is,  whether  the  appropriation  of  money  received  by  the  prothon- 
otary for  the  sheriff,  to  fees  received  by  the  sheriff  for  the  pro- 

327 


293  SUPREME  COURT  [Lancaster, 

[The  Commonwealth  v.  Clarkson,  Administrator  of  Passmore.] 

r*90'^l  thonotary,  be  *a  receipt  of  the  fees  by  the  prothonotary, 
•-  J  at  the  time  he  received  the  money  of  the  sheriff,  or  at 
the  time  the  appropriation  is  actually  made?  He  argued  in  sup- 
port of  the  negative  of  the  proposition,  and  cited  Turner  v.  Fen- 
dall,  1  Cranch,  117;  6  Bac.  Ab.  135. 

DouglasSy  for  the  commonwealth,  answered — That  the  fees 
were  substantially  received  while  the  prothonotary  was  in  office, 
because,  the  right  of  set-off  then  existed,  which  was  equivalent 
to  actual  payment. 

The  opinion  of  the  court  was  delivered  by 

Gibson,  C.  J. — Mr.  Passmore,  while  in  office,  received  fees 
which  were  due  to  the  sheriff,  and  the  sheriff  during  the  same 
period,  received  fees  which  were  due  to  Mr.  Passmore ;  and  the 
question  is,  whether  these  cross  demands  extinguished  each 
other  by  operation  of  law,  or  whether  that  effect  was  j)roduced 
for  the  first  time  when  actual  defalcation  took  place  by  the  act 
of  the  parties? 

Defalcation  was  unknown  at  the  common  law,  according  to 
which,  mutual  debtg  were  distinct  and  inextinguishable  except 
by  actual  payment  or  release.  But  the  statute  of  set-off  which 
was  intended  to  prevent  circuity,  has  been  held  to  operate  on 
the  rights  of  the  parties  before  action  brought,  or  an  act  done 
by  either  of  them.  In  Murray  v.  Williamson,  (3  Binn.  135,) 
a  set-off  was  sustained  against  an  administrator,  "  because,"  as 
Judge  Yeates  well  observed,  "  the  sum  really  due  at  the  death 
of  the  party  is  the  true  debt."  On  no  other  principle  coufd 
there  be  a  set-off  against  the  representative  of  an  insolvent 
decedent ;  instead  of  which  the  defendant  would  have  to  pay 
the  demand  against  him  first,  and  then  come  in  with  the  other 
creditors  for  a  dividend  of  his  own  money  according  to  the  de- 
gree of  his  debt.  This  we  see  is  not  the  case,  everything  but 
the  balance  having  been  previously  extinguished.  We  have 
other  instances  of  the  same  principle,  where  it  did  not  depend 
on  positive  law.  In  Griffith  v.  Chew,  (8  Serg.  &  Rawle,  17,) 
where  the  obligee  in  a  joint  and  several  bond,  had  appointed  an 
administrator  of  one  of  the  obligors,  having  assets,  to  be  one  of 
his  own  executors,  it  was  held  that  the  debt  was  paid  presently, 
the  law  having  made  the  application  without  waiting  for  the  act 
of  the  party.  On  the  same  principle  a  retainer,  which  was 
formerly  pleaded  specially,  may  now  be  given  in  evidence  on 
'plene  administravit,  the  law  having  administered  the  assets  in 
the  hands  of  the  executor  by  payment  of  his  debt.  The  appli- 
cation of  this  principle  is  consistent  with  both  justice  and  con- 
venience, particularly  where  the  party  to  whose  use  the  money 
328 


Tune  1,  1829.]       OF   PENNSYLVANIA.  293 

[The  Commonwealth  v.  Clarkson,  Administrator  of  Passmore.] 

was  received,  had  no  property  specifically  in  the  coin  or  bills  of 
which  it  consisted,  and  to  whom  a  recovery  could  not  be  more 
beneficial  than  a  retainer  of  the  money  already  in  hand.  Ac- 
cording to  both  reason  and  authority,  therefore,  the  fees  re- 
ceived by  the  sheriff  were  virtually  in  the  hands  of  Mr.  Pass- 
more,  the  instant  that  he  and  the  sheriff  became  *re-  r^^n/n 
ciprocally  holders  of  each  other's  funds ;  and,  as  this  ^  -^ 
occurred  while  Mr.  Passmore  was  in  office,  the  fees  in  question 
are  subject  to  taxation. 

Judgment  affirmed. 

Cited  by  Counsel,  2  R.  322;  4  E.  365;  3  Wh.  278 ;  5  Wh.  264;  8  W.  262; 
9  W.  180  ;  2  S.  623 ;  2  G.  78. 

Cited  by  the  Court,  8  W.  43 ;  10  W.  256. 
Commented  on  and  explained,  8  W.  411. 


[Lancaster,  June  1, 1829.] 

Otty  and  Wife  against  Ferguson,  Executor  of  Shuey, 
and  Others. 


Where  several  legacies  are  charged  upon  land,  which  is  sold  under  a  judg- 
ment obtained  by  one  of  the  legatees,  but  proves  insufficient  to  pay  all  the 
legacies,  the  legatee  who  instituted  the  first  suit,  and  obtained  the  first  judg- 
ment and  execution,  gains  no  preference  thereby ;  but  the  proceeds  must  be 
distributed  pro  rata  among  all  the  legatees. 
• 

Appeal  from  the  Court  of  Common  Pleas  of  Dauphin  county, 
under  the  act  of  assembly  of  the  16th  of  April,  1827,  "relative 
to  the  distribution  of  money  arising  from  sheriffs'  and  coroners' 
sales,  &c."     (Pamp.  L.  p.  471). 

From  the  record,  the  substance  of  the  case  appeared  to  be 
thus :  Shuey,  the  testator,  gave  legacies  to  sundry  legatees, 
among  the  rest  to  Otty  and  wife,  the  appellants,  all  charged 
upon  a  tract  of  land.  Otty  and  wife,  to  enforce  payment  of 
their  legacy,  having  brought  a  suit  against  the  executor,  and 
obtained  a  judgment  and  sundry  executions,  procured  the  land 
to  be  sold  by  the  sheriff;  but  as  the  money,  when  brought  into 
court,  was  not  enough  to  pay  all  the  legacies,  Otty  and  Avife 
claimed  a  preference  and  to  have  satisfaction  in  full  of  their 
judgment.  The  other  legatees  insisted  upon  a  p*o  rata  dividend 
among  all.  It  appeared  that  an  issue  was  directed  or  agreed 
upon  to  try  the  matter  in  dispute,  and  a  verdict  and  judgment 
given  against  the  preference  asked  for  by  Otty  and  wife.  But 
they  claimed  interest  on  their  dividend,  alleging  interest  to  be 

329 


294  SUPREME  COURT  [Lancagter, 

[Otty  and  Wife  v.  Ferguson,  Executor  of  Shuey,  and  others.] 

a  legal  consequence  of  the  judgment  in  their  favour.  It  was 
denied  by  the  court  below,  and  thereupon  this  appeal  was 
taken. 

Elder,  for  the  appellants. 

G.  Fisher,  who  was  to  have  argued  for  the  appellees,  was 
stopped  by  the  court. 

Tod,  J. — I  take  the  decision  to  be  right.  Very  pernicious 
would  be  a  rule  requiring  each  of  nine  legatees,  as  in  this  case, 
to  bring  a  separate  action ;  and,  though  there  might  have  been 
no  dispute  in  the  matter,  and  it  was  the  interest  of  all  to  have 
a  judicial  sale  of  the  land,  yet  to  compel  them  to  load  the  estate 
r*OQ.-i  ^^^^  the  costs  of  nine  actions  *instead  of  one.  The 
L  J  chancery  practice  requires  no  such  thing,  nor  does  our 
law  in  analogous  cases.  Where  a  fund  is  legally  appropriated 
for  the  satisfaction  of  divers  co-existing  fixed  claims,  the  gen- 
eral rule  is,  that  no  advantage  is  acquired,  either  as  to  principal 
or  interest,  by  priority  of  suit. 

To  obtain  a  judgment  against  the  estate  of  a  person  deceased, 
gives  no  preference.  Nor  does  a  levy  on  land.  Wootering  v. 
Stewart's  Executors,  2  Yeates,  483 ;  Prevost  v.  Nicholls,  4 
Yeates,  479 ;  Scott  v.  Ramsay,  1  Binn.  221.  In  Dowley  and 
Thomas  v.  Hays,  decided  by  this  court  in  Sunbury,  and  not  yet 
reported,  it  was  held,  that  in  case  of  a  mortgage  given  to  secure 
the  payment  of  sundry  bonds,  and  those  bonds  assigned  to  dif- 
ferent holders,  priority  of  suit  or  of  judgment  secures  no  ^- 
vantage  as  against  the  mortgaged  property.  As  to  the  rule  in 
equity  for  equal  payment  in  these  cases,  see  2  Har.  Ch.  99 ;  3 
Atk.  557 ;  1  Ves.  215 ;  2  P.  Wms.  50 ;  2  Johns.  Rep.  576 ;  1 
Hen.  &  Mumf.  11. 

It  is  the  opinion  of  the  court  that  the  judgment  be  affirmed. 

Judgment  affirmed. 

Cited  by  Counsel,  1  Penn.  K.  329 ;  3  Penn.  B.  384 ;  1  W.  «St  S.  145. 
Cited  by  the  Court,  1  W.  418. 


330. 


June  1,1829.]         OF  PENNSYLVANIA.  29^ 


[Lancaster,  June  1,  1829.] 

The  Bank  of  Pennsylvania,  for  the  use  of  Echelman 
and  Another,  against  Winger  and  Another,  with 
notice,  &c. 

IN   ERROR. 

The  possession  of  money  bv  the  slieriff  arising  from  the  sale  of  lands,  suffi- 
cient to  satisfy  a  judgment  earlier  than  that  under  which  the  sale  was  made, ' 
is  not  per  se,  a  satisfaction  of  such  earlier  judgment.  The  prior  judgment 
creditor  may  waive  his  priority  in  favour  of  a  subsequent  one,  witliout  work- 
ing an  extinguishment  of  his  judgment,  which  may  be  satisfied  out  of  any 
other  land  originally  bound  by  it.  And,  if  the  subsequent  judgment  creditor 
become  the  assignee  of  the  first  judgment,  he  succeeds  to  all  the  rights  of  the 
assignor. 

This  case  came  before  the  court  on  a  writ  of  error  to  the 
Court  of  Common  Pleas  of  Lancaster  county,  in  which  it  was  a 
scire  facias  upon  a  judgment  issued  by  the  phiintiffs  in  error. 
The  Bank  of  Pennsylvania,  for  the  use  of  Jacob  Echebnan  and 
Benjamin  Vernor,  against  Jacob  Winger  and  Peter  Reidebaugh, 
with  notice  to  Catherine  and  Elizabeth  Stoolfoos. 

As  it  appeared  from  the  record,  the  case  was  thus  : — Jacob 
Echelman,  on  the  9th  of  April,  1822,  obtained  a  judgment 
against  Peter  Reidebaugh,  one  of  the  present  defendants,  f(jr 
seven  thousand  eight  hundred  and  fifty  dollars.  Upon  this  judg- 
ment he  issued  a  fieri  facias  to  April  Term,  1822,  under  which 
the  defendant's  real  estate  was  levied  upon,  which,  by  virtue  of 
a  venditioni  exponas,  returnable  to  August  Term,  1822,  was  sold 
on  the  28th  of  *June,  1823,  for  eight  thousand  five  hun-  r:K9Q(^-| 
dred  and  five  dollars.  The  conditions  of  sale  stated,  ^  -• 
that  the  property  was  to  be  sold  for  lawful  money  of  the  United 
States,  to  be  paid  on  or  before  the  16th  of  August,  1823,  and 
that  the  sheriff  would  execute  a  deed  at  the  next  August  court, 
conveying  to  the  purchaser  all  the  estate  of  Reidebaugh  in  the 
premises.  The  ])urchaser  executed  a  bond  for  the  purchase- 
money,  to  which  Echelman  was  a  witness.  Of  the  proceeds  of 
the  sale,  Echelman  received  eight  thousand  two  hundred  and 
thirty-three  dollars  and  seventy-eight  cents,  and  the  residue  went 
to  satisfy  three  small  judgments  of  an  earlier  date.  At  Janu- 
ary Terra,  1822,  a  judgment  was  entered  in  favour  of  Benjamin 
Vernor  against  Peter  Reidebaugh,  conditioned  for  the  payment 
of  two  thousand  six  hundred  and  fifty-one  dollars.  Prior  to  the 
judgment  under  which  the  sale  took  place,  viz.,  on  the  27th  of 
November,  1820,  the  Bank  of  Pennsylvania  had  obtained  a  judg- 
ment against  Jacob  Winger  and  Peter  Reidebaugh.  It  appeared 
in  evidence  that  Reidebaugh  had  indorsed  notes  for  AVinger, 

331 


296  SUPREME  COURT  [Lamjoder, 

[The  Bank  of  Pennsylvania,  for  the  use  of  Echelman  and  another,  v.  Winger 
and  another,  with  notice,  &c.] 

which  were  discounted  by  the  Bank  of  Pennsylvania  and  the 
Farmers'  Bank.  To  indemnify  him  against  tliese  indorsements, 
and  also  to  secure  payment  for  a  quantity  of  grain,  Winger  gave 
to  Reidebaugh  a  bond  for  eiglit  hundred  dollars,  upon  which 
judgment  was  entered  on  the  28th  of  December,  1819.  This 
judgment  was  marked  satisfied  on  the  26th  of  February,  1 820, 
the  amount  having  been  paid  by  the  assignees  of  Winger,  who 
had  made  an  assignment  for  the  benefit  of  his  creditors,  and 
whose' property  yielded  more  than  enough  to  pay  his  debts. 

On  the  29th  of  August,  1823,  the  Bank  of  Pennsylvania  as- 
signed their  judgment  against  Jacob  Winger  and  Peter  Reide- 
baugh, to  Jacob  Echelman  and  Benjamin  Vernor,  who  issued  a 
scire  faeias  to  revive  it,  returnable  to  November  Term,  1 828, 
with  notice  to  Catherine  and  Elizabeth  Stoolfoos.  Judgment  in 
the  scire  facias  having  been  obtained,  a  fieri  facias  on  which  the 
real  debt  was  marked  three  hundred  and  eleven  dollars,  issued 
to  January  Term,  1824,  from  the  return  of  which  it  appeared, 
that  the  debt,  interest,  and  costs,  had  been  paid  by  the  assignees 
of  Jacob  Winger,  under  his  voluntary  assignment,  made  for  the 
benefit  of  his  creditors. 

On  the  1st  of  May,  1824,  on  motion  of  the  counsel  of  Win- 
ger's assignees  and  affidavit  filed,  the  court  granted  a  rule  to 
show  cause  why  the  money  paid  into  the  hands  of  the  sheriff,  on 
the  execution  in  this  case,  should  not  be  repaid  to  the  assignees, 
the  execution  set  aside,  the  judgment  opened  and  the  defend- 
ants let  into  a  defence.  After  argument,  the  court  decided,  that 
the  defendants  should  be  let  into'a  defence ;  that  the  execution 
should  remain  as  a  security,  and  that  the  money  paid  under  it 
should  remain  in  court  to  abide  the  event  of  the  suit.  The 
cause  was  tried  on  the  plea  of  payment,  to  ascertain  whether 
anything  was  due  on  the  original  judgment. 
r*9Q71  *^^  ^^®  trial,  the  court  below  were  requested  by  the 
L  J  counsel  both  of  the  plaintiffs  and  the  defendants,  to  in- 
struct the  jury  on  certain  points,  which  they  respectfully  sub- 
mitted, and  to  file  their  charge  of  record.  In  order  to  under- 
stand the  case,  it  will  be  necessary  that  these  points,  together 
with  the  charge  of  the  court,  and  the  errors  assigned  in  it,  should 
be  fully  set  out. 

The  plaintiff's  points  were  as  follows,  viz. : 

"  1st.  That  a  payment  to  a  sheriff'  on  an  execution  in  his 
hands,  is  a  payment  to  the  plaintiff  in  the  same,  and  the  persons 
paying  the  money  to  the  sheriff  never  can  recover  the  same 
back  in  any  form  of  action,  and  therefore  the  defendants  in  this 
case  have  no  right  to  a  return  of  the  money  paid. 

"  2d.  That  Henry  D.  Oberholtzer,  Henry   Carpenter,  and 
332 


/wne  1,1829.]        OF  PENNSYLVANIA.  297 

[The  Bank  of  Pennsylvania,  for  the  use  of  Echelman  and  another,  v.  Winger 
and  another,  with  notice,  &c.] 

Christian  Wiuger,  being  the  assignees  of  Jacob  Winger,  who 
was  the  principal  in  the  note  on  which  this  suit  was  brought, 
and  the  estate  of  the  said  Jacob  Winger,  in  the  hands  of  the 
said  assignees,  being  sufficient  to  pay  all  his  debts  and  con- 
siderably more,  and  the  estate  of  the  said  Peter  Reidebaugh,  the 
other  defendant,  surety  or  indorser  being  insufficient  for  that 
purpose ;  having  paid  off  this  execution,  which  in  equity  and 
good  conscience,  they  ought  to  liave  done,  have  no  right  to  a 
return  of  the  money  so  paid,  and  the  verdict  must  therefore  be 
for  the  plaintiffs. 

"  3d.  That  the  money  being  made  and  paid,  as  appears  by  the 
return  of  the  sheriff,  was  so  paid  under  a  full  knowledge  of  all 
the  circumstances  of  the  case,  and  with  ample  means  for  obtain- 
ing such  knowledge,  on  an  execution  issued  on  a  judgment  of  a 
court  of  competent  jurisdiction,  and  therefore  cannot  be  re- 
covered back  again  in  any  form  of  action,  nor  cannot  be  refunded 
to  the  person  paying  the  same,  and  therefore  tlie  plaintiff  is  en- 
titled to  recover. 

"  4th.  That  although  the  amount  of  the  sales  of  the  real  prop- 
erty of  Peter  Reidebaugh,  who  was  the  indorser  for  Jacob 
Winger,  may  have  been  sufficient  to  pay  the  judgment  in  this 
case,  yet  the  plaintiff  or  his  assignee  had  his  option  to  pursue 
the  estate  of  Jacob  Winger,  the  principal,  if  he  saw  fit  so  to  do, 
for  the  payment,  and  was  not  bound  to  take  his  money  from  or 
out  of  the  sales  of  the  property  of  the  indorser,  the  principal 
having  sufficient  funds  to  pay ;  and  the  defendant,  Jacob  Winger, 
or  rather  his  assignees,  having,  in  consideration  of  there  being 
sufficient  funds,  paid  the  amount  of  the  execution  and  costs  to 
the  sheriff,  did  no  more  than  in  justice  and  equity  they  ought  to 
have  done ;  therefore  they  have  no  right  to  have  the  money 
refunded  to  him  or  them,  and  the  verdict  must  be  for  the 
plaintiffs. 

"  5th.  That  if  the  assignees  had,  previously  to  paying  the  debt 
and  costs  on  this  execution,  paid  the  amount  of  the  note  on  which 
this  judgment  was  obtained,  to  Peter  Reidebaugh,  the  indorser, 
trusting  to  his  honour  to  discharge  the  same,  such  payment  was 
in  fraud  of  the  creditors  and  in  their  own  wrong,  and  could  not 
raise  any  *equity  in  their  favour,  nor  could  it  be  per-  rjcoqo-i 
mitted  legally  to  operate  as  an  injury  to  the  subse-  '-  -' 
quent  judgment  and  mortage  creditors  of  the  said  Peter  Reide- 
baugh. 

"  6th.  That  if  the  equity  is  equal,  the  law  will  not  interfere 
between  the  parties,  but  to  permit  them  to  remain  in  the  same 
situation  they  now  are  in." 

The  following  were  the  defendants'  points  : 

333 


298  SUPREME  COURT  [Lancaster, 

[The  Bank  of  Pennsylvania,  for  the  use  of  EJchelman  and  another,  v.  Winger 
and  another,  with  notice,  &c.] 

"  1st.  That  under  the  laws  of  Pennsylvania,  the  original  judg- 
ment on  which  this  sch-e  facias  issued,  was  on  the  28th  of  June, 
1823,  satisfied  and  extinguished  ;  the  sheriff  on  that  day,  having 
sold  the  real  estate  of  Peter  Reidebaugh,  one  of  the  defendants 
in  this  suit,  for  eight  thousand  five  hundred  and  five  dollars,  a 
sum  more  than  sufficient  to  pay  that  judgment  and  all  prior  in- 
cumbrances. 

"  2d.  That  as  Jacob  Echleman  was  a  witness  to  the  single  bill 
for  eight  thousand  five  hundred  and  five  dollars,  executed  by  the 
purchaser  of  Peter  Reidebaugh's  real  estate,  sold  at  sheriff's 
sale,  he  had  full  legal  notice,  when,  on  the  29th  of  August,  1823, 
he  and  B.  Vernor,  took  an  assignment  of  the  judgment  from  the 
bank,  that  by  the  law  of  Pennsylvania  it  was  paid  and  extin- 
guished. 

"  3d.  That  if  the  jury  believe  the  testimony  of  Peter  O.  Don 
nel,  it  would  be  against  equity  and  good  conscience  to  find  a 
verdict  for  the  plaintiffs  in  this  ca.se." 

Charge  of  the  Cotjrt. — "  In  this  case,  the  Bank  of  Penn- 
sylvania, on  the  27th  day  of  November,  1820,  obtained  a  judg- 
ment against  Jacob  Winger  and  Peter  Reidebaugh.  This  judg- 
ment was  afterwards  assigned  to  Jacob  Echelman  and  Benjamin 
Vernor  on  the  29th  of  August,  1823. 

"  Jacob  Echelman,  on  the  9th  of  April,  1822,  obtained  a  judg- 
ment against  Peter  Reidebaugh,  one  of  the  defendants  in  the  suit 
of  the  bank,  for  seven  thousand  eight  hundred  and  fifty  dollars. 
On  tliis  judgment  a  fieri  facias  issued,  under  which  the  real  estate 
of  Peter  Reidebaugh  was  levied  upon  and  condemned.  A  ven- 
ditioni  exponas  issued.  The  conditions  of  the  sale  which  took 
place  upon  this  venditioni  exponas,  stated  that  the  premises 
were  to  be  sold  for  lawful  money  of  the  United  States,  to  be  paid 
at  or  upon  the  16th  of  August,  1823,  and  the  sheriff  would  ex- 
ecute a  deed  at  the  next  August  court,  conveying  all  the  estate, 
right,  and  title  of  Peter  Reidebaugh,  consisting  of  his  right, 
title,  and  interest  of,  in  and  to  a  certain  tract  of  land  containing 
one  hundred  and  three  acres,  (more  or  less,)  situate  in  Leacock 
township,  adjoining  lands  of  William  Brinton,  Jacob  Musser, 
and  others,  with  the  improvements  thereon  erected.  It  was 
struck  off  on  the  28th  of  June,  1823,  to  Jacob  Musser  for  the 
sum  of  eight  thousand  five  hundred  and  five  dollars,  which  was 
paid  by  the  purchaser.  Mr.  Echelman  was  a  witness  to  the 
r*2Q9l  ^^^^  given  for  the  purchase-money,  *and  this  is  evidence 
L  -I  of  notice  to  him  of  the  state  of  the  case.  The  judgment 
of  the  Bank  of  Pennsylvania  being  first  in  point  of  priority  was 
entitled  to  be  paid  out  of  this  money,  and  the  sheriff  having  re- 
ceived the  amount  of  this  purchase-money,  and  being  bound  to 
334 


June  1,1829.]         OF   PENXSYLVANIA.  299 

[The  Bank  of  Pennsylvaiiia,  for  the  nse  of  Echlenian  and  another,  v.  Winger 
aii(i  another,  with  notice,  &c.] 

pay  the  liens  according  to  their  priority,  the  defendants  contend 
that  the  judgment  of  the  Bank  of  Pennsylvania  was  thereby 
satisfied  and  extinguished.  Jacob  Echehiian  and  Benjamin  Ver- 
nor,  notwithstanding  tiiese  proceedings,  obtained  from  tlie  baniv 
on  the  29th  of  August,  1823,  an  assignment  of  their  judgment 
against  Winger  and  Reidebaugh,  issued  a  scire  facias  on  it  with 
notice  to  Catherine  and  Elizabeth  Stoolfoos,  obtained  a  judgment 
and  issued  a  fieri  facias  to  January  Term,  1824,  for  the  sum 
of  three  hundred  and  eleven  dollars,  with  interest  from  24th  of 
November,  1823. 

"  On  this  exeqiition  there  is  an  indorsement,  '  that  tlie  debt, 
interest,  and  cost-;?,  were  paid  by  Oberholtzer  and  Winger,  who 
were  the  assignees  of  Jacob  Winger,  tinder  a  voluntary  assign- 
ment, made  by  him  for  the  benefit  of  his  creditors.' 

"  Now  the  allegation  of  the  defendants  is,  that  the  judgment 
of  the  bank  having  been  satisfied  and  extinguished  by  the  sale 
of  Reidebaugh's  property  and  the  payment  of  the  proceeds  into 
the  hands  of  the  sheritf,  all  the  subsequent  proceedings  on  that 
judgment  were  irregular  and  void,  and  the  money  paid  on  the 
execution  was  forced  from  the  assignees ;  that  it  was  paid  to 
them  in  their  own  wrong,  and  the  plaintiiFs  not  being  entitled 
to  receive  it  it  should  be  returned  to  them ;  and  these  are  the 
questions  for  you  to  try  and  determine  under  the  testimony  in 
this  cause.  Other  matters  than  I  have  mentioned,  have  been 
given  in  evidence,  which  the  parties  judge  material,  and  which 
it  will  be  proper  for  you  to  consider  and  determine. 

"  The  record  shows  that  Peter  Reidebaugh,  on  the  28th  of 
December,  1819,  obtained  a  judgment  against  Peter  Winger  for 
eight  hundred  dollars  :  this  judgment  was  marked  satisfied  on  the 
26th  of  February,  1820,  It  appears  in  evidence  that  tlie  bond 
on  which  this  judgment  was  entered,  Avas  given  by  Winger  tt) 
Reidebaugh,  for  some  grain,  and  to  indemnify  him  from  the 
notes  due  the  Pennsylvania  Bank  and  the  Farmers'  Bank,  and 
that  the  amount  was  paid  off  by  the  assignees  of  Jacob  Winger, 
who,  it  seems,  had  in  their  hands  more  than  sufficient  to  pay  all 
his  debts.  If  Reidebaugh,  when  he  received  the  money,  had 
appropriated  it  as  he  ought  to  have  done,  there  would  have  been 
no  question  in  the  case,  and  we  would  have  been  saved  the 
trouble  of  this  trial ;  but  he  did  not  pay  it,  and  retained  the 
money. 

"  On  this  point  of  the  case  the  defendants  contend,  that  if 
you  believe  the  testimony  of  Peter  O.  Donnel,  it  would  be  against 
equity  and  conscience  to  find  a  verdict  for  the  plaintiff.  Aixi, 
on  the  part  of  the  plaintiffs,  that  if  the  assignees  had,  previou-iy 

33-> 


300  SUPREME  COURT  [iMncaster, 

[The  Bank  of  Pennsylvania,  for  the  use  of  Echleman  and  another,  v.  Winger 
and  another,  witli  notice,  &c.] 

r*'^om  ^®  P''^y''^S  the  debt  *and  costs  on  this  execution,  paid 
«-  J  the  amount  on  the  note  on  wliich  judgment  was  obtained 
to  Peter  Reidebaugh,  the  indorser,  trusting  to  his  honesty  to 
discharge  the  same,  such  payment  was  in  fraud  of  the  creditors 
and  in  their  own  wrong,  and  could  not  raise  any  equity  in  their 
favour,  nor  could  it  be  permitted  legally  to  operate  as  an  injury 
to  the  subsequent  judgment  and  mortgage  creditors  of  the  said 
Peter  Reidebaugh. 

"  It  appears  to  me  that  quite  as  much  stress  as  was  necessary 
was  laid  upon  this  payment  on  both  sides  as  it  respects  the  ques- 
tion before  the  court.  It  was  an  unfortunate  payment  on  the 
part  of  the  assignees,  and  it  does  not  appear  to  me  how  it  can 
have  much  operation  either  against  them  or  in  favour  of  the 
plaintiffs,  who  were  not  privy  to  it,  nor  had  any  concern  in  it. 
If  the  question  were  made  as  it  affects  Reidebaugh,  it  would 
have  great  weight.  If  he  were  resisting  payment  it  would  be  a 
complete  answer.  It  would  then  manifestly  show  he  was  no 
longer  to  be  considered  in  the  light  of  a  surety.  If  no  injury 
were  done  to  others,  equity  would  be  clearly  in  favour  of  per- 
mitting the  money  to  come  out  of  Reidebaugh 's  estate. 

"  The  case  depends  principally,  if  not  altogether,  upon  the 
question  how  far  the  law  considers  the  proceedings  under  the 
execution  of  Mr.  Echelman  as  a  satisfaction  and  extinguishment 
of  the  judgment  of  the  bank.  * 

"  The  plaintiffs  contend,  that  although  the  amount  of  the 
sales  of  the  real  property  of  Peter  Reidebaugh,  who  was  in- 
dorser for  Jacob  Winger,  may  have  been  sufficient  to  pay  the 
judgment  in  this  case,  yet  the  plaintiffs  or  their  assignees  had 
their  option  to  pursue  the  estate  of  Jacob  Winger,  the  principal, 
if  they  saw  fit  to  do  so  for  payment,  and  were  not  bound  to  take 
their  money  out  of  the  sales  of  the  property  of  the  indorser, 
the  principal  having  sufficient  funds  to  pay,  and  the  defendant, 
Jacob  Winger,  or  rather  his  assignees,  having,  in  consideration 
of  there  being  sufficient  funds,  paid  the  amount  of  the  execution 
and  costs  to  the  sheriff,  did  no  more  than  in  justice  and  equity 
they  ought  to  have  done,  and  therefore  they  have  no  right  to 
have  the  money  refunded  to  them,  and  your  verdict  must  be  for 
the  plaintiffs. 

"  It  appears  to  the  court,  that  the  plaintiffs  had  no  such 
option  as  is  contended  for,  and  that  they  were  bound  to  take 
the  money  made  upon  the  execution  if  they  were  entitled  to 
it,  of  which  there  can  be  no  doubt ;  and  it  is  the  opinion 
of  the  court,  that  under  the  laws  of  Pennsylvania,  the  original 
judgment  on  which  the  scire  facias  issued,  was,  on  the  pay- 
ment of  the  money  to  the  sheriff  on  the  execution  against 
336 


June  1,1829.]        OF  PEXXSYLVAXJA.  300 

[The  Bank  of  Pennsylvania,  for  the  use  of  Echelman  and  another,  v.  Winger 
and  another,  with  notice,  &c.] 

Reidebaugli,  sati^^fied  and  extinguished,  the  slieriif  having  re- 
ceived a  sum  more  than  .sufficient  to  })ay  that  judgment  and  all 
prior  inounibrauces. 

"  The  counsel  for  the  plaintiff  have  requested  the  court  to  in- 
struct you  as  in  Nos.  1,  2,  and  3.  The  money  being  paid  into 
court  on  an  ^execution,  and  waiting  tiie  decision  of  the  r*qnii 
court  and  jury,  none  of  the  parties  are  precluded  from  L  J 
any  remedy  which  they  before  iiad.  The  rules  relative  to  volun- 
tary payment  do  not  apply.  The  matter  is  open  to  all  the  law 
and  equity  of  the  case,  and  the  payment  neither  lessens  ^r  en- 
larges the  rights  of  the  })laintifl[:s  or  defendants. 

"You  will  consider  the  evidence  and  arguments  in  the  case, 
and  render  such  verdict  as  you  think  rigiit.  If  you  are  of  opin- 
ion that  the  evidence  shows  an  extinguishment  of  the  judgment, 
vou  will  find  for  the  defendants,  otherwise  jou  will  find  for  the 
plaintiffs." 

Tiie  errors  assigned  in  this  court  were, 

"  1st.  The  court  charged  the  jury  on  the  fourth  point  sub- 
mitted by  the  plaintiff  as  follows,  to  wit :  '  It  apj)ears  to  the 
court  that  the  plaintiffs  had  no  such  option  as  contended  for, 
and  that  they  were  bound  to  take  the  money  made  ujiou  the 
execution,  if  they  were  entitled  to  it,  of  which  there  can  be  no 
doubt ;  and,  it  is  the  opinion  of  the  court  that  under  the  law  of 
Pennsylv^ania,  the  original  judgment  on  which  this  scire  facias 
issued,  was,  on  the  payment  of  the  money  to  the  sheriff  on  the 
execution  against  Reidebaugli,  satisfied,  and  extinguished ;  the 
sheriff  having  a  sum  more  than  sufficient  to  pay  that  judgment 
and  all  prior  incumbrances :'  in  the  whole  of  which  there  is 
error. 

"  2d.  The  court  charged  the  jury  on  the  fiflh  point  of  the 
plaiutifl's,  and  third  and  last  of  the  defendants  :  '  It  api>ears  to 
me  that  quite  as  much  stress  as  was  necessary  was  laid  upon 
this  payment  on  both  sides,  as  it  respects  the  question  before 
the  court.  It  was  an  unfortunate  payment  on  the  part 
of  the  assignees,  and  it  does  not  appear  to  me  how  it  can  have 
much  operation,  either  against  them  or  in  favour  of  the  plain- 
tiffs, who  were  not  privy  to  it,  or  had  any  concern  in  it.  If  the 
question  were  made  as  it  might  affect  Reidcbaugh,  it  would 
have  great  weight ;  if  he  was  resisting  payment,  it  would  be  a 
complete  answer.  It  would  manifestly  show  he  was  no  longer 
to  be  considered  in  the  light  of  security,  if  no  injury  was  done 
to  others.  Equity  would  be  clearly  in  favour  of  permitting  the 
money  to  come  out  of  Reidel)augh's  estate.'  In  this  there  is 
error,  and  it  is  not  an  answer  to  the  points,  and  w^as  calculated 
to  mislead  the  jury. 

VOL.  I.— 22  337 


301  SUPREME  COURT  [Lancaster, 

[The  Bank  of  Pennsylvania,  for  the  nse  of  Echclnmn  and  another,  v.  Winger 
^  and  another,  with  notit-e,  Ac] 

"3<1.  That  the  first,  second,  third,  and  sixth  points  submitted 
by  the  phiintifts,  are  not  answered  by  the  court,  ahhou^h  very 
material  to  the  matter  in  controversy,  and  so  far  as  they  are 
answered  tiiere  is  error  in  the  answer. 

"4th.  The  general  errors." 

Evans  and  Nonns,  for  the  plaintiffs  in  error,  cited  1  Johns. 
Ch.  Rep.  410,  512  ;  The  Commonwealth  v.  Miller's  Administra- 
tors, S  Serg.  &  Rawle,  458  ;  Patterson  v.  Swan,  9  Serg.  & 
Rawle^  16;  Barnet  t».  Washebangh,  KJ  Serg.  &  Rawle,  414; 
r*'^n91  *^^^orris  v.  Tarin,  1  Dall.  147 ;  Same  v.  Same,  2  Dall. 
L  ^^-J   115.  1  Day^  i;^0;  1  Esp.  5,  16. 

W.  Hopkins,  for  the  defendants  in  error,  cited  2  Bac.  Ab. 
739;  Harris  v.  Fortune,  1  Binn.  125;  Moliere's  Lessee  v.  Noe, 
4  Dall.  450;  Hunt  v.  Breading,  12  Serg.  &  Rawle,  41  ;  Cow- 
den  V.  Brady,  8  Serg.  &  Rawle,  508 ;  Whart.  Dig.  90,  i)l.  4 ; 
Eighty  V.  Brenner,  14  Serg.  &  Rawle,  132,  133;  Gilb.  Law  of 
Executions,  25,  26  ;  2  Saund.  47  a,  n.  1  ;  2  Bac.  Ab.  720 ; 
The  Bank  of  North  America  v.  Fitzsin)ons,  3  Binn.  358 ;  Au- 
werter  v.  Mathiot,  9  Serg.  &  Rawle,  403  ;  2  Johns.  Ch.  Rep.  443. 

The  opinion  of  the  court  was  delivered  by 

Gibson,  C.  J. — It  was  long  a  moot  point  whether  the  sale  of 
land  on  execution  would  discharge  a  prior  lien  ;  but  I  believe 
no  one  ever  suspected  that  it  would  discharge  the  debt.  Such 
a  consequence  could  be  produced  only  by  treiiting  the  debt  and 
its  lien  as  inseparable.  The  lien  is,  however,  but  a  se<nirity 
which  may  be  released  either  before  or  after  a  sale,  and,  as  any 
other  security,  without  affecting  the  existence  of  the  debt.  By 
a  sale,  the  purchase-money  is  substituted  for  the  land ;  and  as 
it  is  withdrawn  from  the  control  of  the  debtor,  and  jnit  within 
that  of  the  Hen  creditors,  I  admit  that  they  are  bound  to  look 
to  the  application  of  it,  insomuch  that  a  loss  of  any  part  of  it  will 
have  to  be  borne  by  him  whose  act  occasioned  it :  in  other  words, 
that  the  debtor  may,  in  equity  and  conscience,  consider  what- 
ever has  perished  in  the  hands  of  the  shcriH*,  as  actually  paid  to 
■liim  who  is  entitled  to  receive  it.  But  can  he  do  so  in  respect 
of  what  has  gone  into  his  own  pocket,  or,  what  is  the  same 
thing,  in  ease  of  his  debts  ?  It  never  has  been  supposed — cer- 
tainly it  never  has  been  decided — that  he  can.  Where  a  credi- 
itor  has  had  two  funds,  we  have  prevented  him  from  frustrating 
the  lien  of  another  who  had  but  one;  yet  that  could  not  be  done 
if' the  rights  of  the  parties  were  fixe<l  by  the  sale;  for  the  prior 
judgment  creditor  would  be  paid  by  operation  of  law,  and  before 
338 


June  1,1S29.]  OF   PENNSYLVxiNIA.  302 

[The  bank  of  Pennsylvania,  for  tlie  use  of  Eclielinan  and  another,  ?•.  Winger 
and  another,  with  notice,  <^'c.] 

the  court  could  interpose.  Hunt  v.  ]5reading  (12  Serg,  &  R,awle, 
37),  is  cited  to  show  that  a  levy  to  the  value  of  the  debt,  is  per 
se,  satisfaction  of  the  execution  on  which  the  levy  was  made. 
It  would  be  more  to  the  pur])o,se  to  show  that  it  discliarges  other 
executions  which  bind  the  goods.  If  such  were  the  law,  a  mul- 
titude of  cases  would  necessarily  hav^e  arisen  under  it;  and 
the  total  absence  of  decision  on  the  subject,  is  satisfactory 
evidence  that  the  principle  does  not  exist.  Surely  a  right  to 
priority  of  payment  may  be  waived  without  waiving  that  of 
which  it  is  but  an  accident.  A  creditor  may  release  the  land 
without  releasing  the  debt;  and  why  not  the  purclfase-money, 
which  is  in  the  place  of  the  land  ?  It  seems  to  me  he  does  no 
more  when  he  waives  his  preference  in  favourof  those  who  claim 
under  the  debtor  by  title  subsequent.  It  is  a  principle  of  com- 
mon sense,  which  has  been  embodied  as  a  maxim,  that  any  one 
may  waive  a  right  created  for  his  own  benefit.  What  injury  can 
it  do  any  one?  *Surcly  lleidebaugh,  whose  proper  r^onoi 
debt  was  paid  with  his  own  money,  could  not  object  to  L  J 
the  waiver  of  preference  by  the  bank  :  and  let  us  see  whether 
Winger,  his  co-debtor,  has  any  better  right  to  do  so. 

Winger  and  lleidebaugh  originally  stood  in  the  relation  of 
principal  and  surety ;  so  that  the  refusal  of  the  bank  to  take 
satisfaction  out  of  the  land  of  the  surety,  was  in  furtherance  of 
the  equity  between  the  debtors  themselves ;  and  to  this  Reide- 
baugh,  the  surety,  could  not  object.  But,  previous  to  this 
Winger  had  ])ut  into  his  hands  funds  to  discharge  the  Avhole 
debt,  which  lieidebaugh  misapplied ;  and  the  original  relation 
between  them,  therefore,  was,  in  fact,  reversed.  But  of  this  the 
bank  was  not  apjirized,  and  it  was  therefore  justifiable  in  acting 
in  conformity  to  the  equity  of  the  original  relation.  It  waived 
its  preference  in  favour  of  a  surety  to  pursue  the  principal — 
the  very  thing  that  a  court  of  equity  Avould  have  compelled  it 
to  do.  I  will  not  stop  to  inquire  whether  the  relation  of  prin- 
cipal and  surety  is  dissolved  by  a  judgment  at  law,  althougli 
the  negative  of  the  question  is  sustained  by  a  solemn  decisio'i 
of  this  court,  and  there  can  be  no  reason  why  the  fixing  of  tho 
parties  at  law  should  absolve  the  principal  from  the  moral  obli- 
gation to  ])rotect  his  sui'cty.  For  the  ])ur])oscs  of  the  argument 
I  will  admit  that  the  relation  is  extinguished.  The  consequence 
is  that  both  are  jirincipals,  and  stand  in  equal  equity  as  lx)tween 
themselves.  How  then  could  Winger  object  to  the  waiver  of  its 
preference  by  the  bank,  if  Reidebaugh  could  not?  A  creditor 
may  collect  his  debt  from  either  of  two  princi])al  debtors,  or 
from  both,  at  his  election.  If  then  the  sale  by  the  shcrilf  were 
not  payment  per  se,  tlie  baidc  had  nothing  in  its  hands  but  the 

339 


303  SUPREME  COURT  [LaneoMer, 

[The  Bank  of  Pennsylvania,  for  the  use  of  Echelman  and  another,  v.  Winger 
and  another,  with  notice,  &c.] 

means  of  actual  paynient,  which  it  is  not  bound  to  retain  in 
favour  of  any  one  but  a  sjirety.  This  principle  is  well  settled 
both  in  Pennsylvania  and  England,  The  Commonwealth  v. 
Miller's  Administrators  (8  Serg.  &  Rawle,  457) ;  Reed  v.  Gar- 
vin (12  Serg.  &  Rawle,  103).  The  bank  then  might  well  per- 
mit the  proceeds  of  Reidebaugh's  land  to  go  to  his  use  without 
injury  to  Winger,  who  was  in  no  aspect  entitled  to  be  treated  as 
a  surety,  and  who  had  no  other  right  to  object  than  that  of 
Reidebaugh  himself. 

Thus  far  I  have  considered  the  question  as  if  it  were  between 
the  defendants  and  the  bank.  The  judgment  is,  however,  owned, 
in  part,  by  Echelman,  the  plaintiff  in  the  judgment  on  which 
Reidebaugh's  land  was  sold ;  and  the  question  is  whether  he  did 
not  stand  in,  at  least,  as  favourable  a  situation  as  did  the  bank. 
The  case  is  just  this :  the  bank  had  a  judgment  against  two, 
which  was  brought  in  by  a  younger  judgment  creditor,  to  enable 
him  to  give  a  preference  to  his  judgment  against  one  of  them. 
I  can  see  nothing  wrong  in  that.  An  assignee  for  valuable  con- 
sideration, succeeds  to  all  the  rights  of  the  assignor.  Even  an 
assignee,  with  notice,  succeeds  to  the  rights  of  a  purchaser  with- 
out it,  because,  having  paid  for  the  advantage  arising  from  the 
r*'^nn  i^^^^^^^^®  0^1,  ^^^®  assignor,  he  is  entitled  *to  the  benefit 
L  -I  of  it.  If  men  the  bank  might  have  used  its  judgment, 
80  as. to  favour  Echelman,  he  acquired  the  same  capacity;  for 
when  distinct  rights  concur  in  the  same  person,  they  are  to  be 
treated  as  if  they  existed  separately  in  different  persons.  So 
far  was  it  from  being  unconscionable  in  him  to  possess  himself 
of  the  means  and  capacity  of  the  bank,  that  a  court  of  equity 
would  have  given  him  the  benefit  of  them.  "  If,"  says  Chan- 
cellor Kent,  '*  a  creditor  has  a  lien  on  two  parcels  of  land,  and 
another  creditor  has  a  lien,  of  a  younger  date,  on  one  of  these 
parcels' only,  and  the  prior  creditor  elects  to  take  his  whole  de- 
mand out  of  the  land  on  which  the  junior  creditor  has  a  lien, 
the  latter  will  be  entitled  either  to  have  the  prior  creditors 
thrown  upon  the  other  fund,  or  to  have  the  prior  lien  assigned 
to  him,  and  to  receive  all  the  aid  it  can  afford.  (Cheesboraugh 
V.  Millard,  1  Johns.  Ch.  412.)  I  cite  this  case  because  it  con- 
tains a  principle,  in  every  particular,  applicable  to  the  case  be- 
fore us,  and  also  references  to  the  authorities.  Echelman, 
therefore,  could  have  compelled  the  bank  to  exhaust  its  means 
of  obtaining  satisfaction  from  the  lands  of  AVinger,  or,  on  })ay- 
ment  of  the  debt,  to  assign  its  lien.  It  has  voluntarily  done 
the  latter ;  and  Echelman  brings,  in  aid  of  the  legal  capacity 
of  the  bank,  the  equity  of  a  junior  judgment  creditor  to  have 
that  capacity  exerted  for  his  advantage.  It  seems  to  me  that, 
340 


Junel,lS'2d.]        OF  PENNSYLVANIA.  304 

[The  Bank  of  Pennsylvania,  for  the  use  of  Echelman  and  another,  v.  Winger 
and  another,  with  notice,  &c.] 

independent  of  all  otlier  considerations,  this  is  decisive  in  \m 
favour.  I  am  therefore  of  opinion  that  the  judgment  be  re- 
versed. 

Judgment  reversed. 

Cited  by  Counsel,  1  Penn.  R.  275 ;  2  Peiin.  R.  204,  281,  477  ;  3  Penn.  R.  59 
3  R.  295 ;  5  R.  55 ;  5  W.  280 ;  8  W.  269 ;  9  W.  540 ;  10  W.  10 ;  9  W.  &  S.  15 
38  ;  7  H.  32 ;  6  C.  58 ;  8  S.  117  ;  20  S.  375,  376 ;  11  N.  201 ;  2  O.  45. 

Cited  bv  the  Court,  1  Penn.  R.  241 ;  3  R.  138;  2  W.  232;  4  W.  398;  8  W 
331;  4  Barr,  118;  8  Barr,  270;  2  II.  274;  3  H.  229;  20  S.  376,  377;  9  N. 
390. 

In  Finney  v.  Commonwealth,  1  P.  &  W.  240,  it  is  said  that  two  of  the  five 
judges  wlio  decided  the  principal  case  were  in  favour  of  extending  its  doctrine 
to  cases  where  there  was  a  junior  incumbrancer  whose  lien  bound  only  the 
second  fund 

Mr.  Justice  Paxson,  however,  in  Horning's  Appeal,  9  N.  388,  admits  that 
the  equity  of  a  subsequent  lien  creditor  may  be  sucli  as  to  allow  him  a  prefer- 
ence over  one  who  has  passed  by  one  fund,  but  at  the  same  time  decided  that 
the  facts  of  the  case  before  him  did  not  raise  any  such  equity. 


[Lancaster,  June  1, 1829.] 
E.oop  against  Brubacker. 

APPEAIi. 

It  is  competent  to  prove  by  the  oath  of  arbitrators,  that  certain  matters  were 
not  examined  or  acted  upon  by  them,  and  that  consequently,  they  had  made  a 
mistake  in  tbeir  award. 

The  plea  of  payment,  with  leave,  &c.,  does  not  admit  the  truth  of  all  the 
averments  in  the  narr.  or  statement.  It  admits  nothing  but  tlie  execution  of 
the  instrument  on  which  the  suit  is  founded  and  what  is  admitted  by  the  gen- 
eral issue  in  every  action.  It  is  a  special  or  a  general  defence,  as  the  notice 
given  under  it  makes  it  one  or  the  other. 

Where  the  plaintiff  removed  the  cause  to  the  Circuit  Court,  and  recovered 
less  than  one  hundred  dollars,  and  ottered  no  evidence  to  prove  a  demand 
exceeding  hve.liundred  dollars,  and  it  was  apparent  tliat  under  the  circum- 
stances of  the  case  none  could  be  olfered,  the  court  ordered  the  plaintitf  to 
pay  the  costs. 

This  was  an  appeal  from  the  decision  of  Tod,  J.,  holding  a 
Circuit  Court  for  Dauphin  county  in  April,  1829. 

The  cause  was  argued  in  the  Supreme  Court  by  j\rClure  and 
Elder,  for  the  plaint"iif  in  error,  who  cited  1  Phil.  Ev.  305,  306; 
1  Johns.  Ch.  Rep.  27(3 ;  2  Johns.  Ch.  Rep.  260 ;  AVilliams  v. 
*Craio-,  1  Dall.  313;  Buckley  v.  Ellmalver,  13  Serg.  &.  r^o/A--] 
Rawle,  71  ;  Schlatter  v.  Etter,  lb.  36  ;  Roth  v.  Miller,  L  '^^'''^J 
15  Serg.  &  Rawle,  lOO. 

Douf/lass,  for  the  defendant  in  error,  referred  to  Stewart  v. 
Mitchell's  Administrators,  13  Serg.  &  Rawk,  287. 

341 


305  SUPREME  COURT  [Lanmster, 

[Roop  V.  Brubacker.] 

The  case  is  sufficiently  stated  in  the  opinion  of  the  court,  which 
was  delivered  by 

Huston,  J.— John  Brubacker  had  made  his  will  and  died 
several  years  ago,  and  appointed  Henry  Brubacker  and  Chris- 
tian Roop  his  executors.  In  his  will  he  had  devise<l  to  Christian 
Roop  and  wife,  a  part  of  his  land,  already  surveyed  off  to  him 
by  J.  Jones,  valued  at  forty-five  dollars  per  acre :  to  his  son 
Joseph,  a  part  adjoining  Roop's,  and  up  to  a  certain  fence,  for 
life;  and,  after  his  death,  to  be  sold  and  equally  divided  between 
his  sons  Henry  and  John,  and  his  son-in-law,  Christian  Roop: 
and  to  his  son  John  he  had  given  the  rest  of  his  plantation  lying 
above  Joseph's  part,  valued  at  forty-five  dollars  per  acre  :  to  his 
son  Henry  he  had  given  a  tract  of  land  in  Ohio,  to  be  appraised 
to  him  at  a  reasonable  valuation,  and  if  this  tract  shall  amount 
to  more  than  John's  and  Christian  Roop's  part,  then  he  must 
pay  to  them  at  the  rate  of  twenty-five  pounds  yearly,  to  make 
all  equal :  if  his  amounts  to  less  than  their  parts,  they  are  to 
pay  to  him,  to  make  all  equal. 

After  some  time,  the  executors  having  settled  their  accounts, 
and  exceptions  being  taken  to  them,  Joseph  having  died,  and  the 
part  devised  to  him  sold  by  the  executors  and  purchased  by 
Henry,  and  nothing  yet  done  as  to  valuing  the  Ohio  land,  the 
parties  agreed  to  refer  to  three  men,  to  adjust  and  settle  all 
matters  in  difference  between  the  parties  respecting  the  estate  of 
John  Brubacker,  deceased,  including  the  Ohio  land,  their  several 
legacies,  bequests,  and  shares,  in  the  said  estate,  and  all  admin- 
istration accounts,  and  in  fact  all  and  every  matter  and  thing 
touching  the  said  estate,  with  full  power  to  make  a  final  settle- 
ment, adjustment,  and  apportionment  of  all  matters,  accounts, 
and  every  matter  between  the  parties  touching  the  said  will  and 
settlement  of  the  estate  of  John  Brubacker.  The  award  to  be 
in  writing  and  final  between  the  parties,  without  appeal,  and 
may  be  entered  up  in  the  court  of  Common  Pleas  of  Dauphin 
county. 

The  arbitrators  made  a  full  and  detailed  rept)rt  of  the  ac- 
counts of  the  executors,  finding  a. balance  from  Henry  to  the 
estate  of  four  hundred  and  twenty-two  dollars  and  eighty-two 
cents,  and  a  balance  to  Roop  of  forty  dollars  and  fifty-one  and 
a  half  cents.  This  part  of  the  report  charged  Henry  Brubacker 
with  the  land  he  had  bought,  eighty-nine  and  a  half  acres, 
at  thirty  dollars  and  twenty-five  cents.  There  were  other 
matters  also  in  the  report,  not  necessary  to  be  mentioned  here, 
and  it  then  proceeded  :^ — "  That  John  Brubacker  and  Christian 
Roop,  do  take  the  Ohio  lands  at  a  just  and  reasonable  valua- 
tion, to  be  fixed  agreeably  to  the  article  of  agreement  entered 
342 


/M?ie  1,  1829.]        OF   PENNSYLVANIA.  306 

[Koop  V.  Brubacker.] 

*into  by  and  between  the  parties  on  the  2cl  of  Sep-  r^oA^-i 
teraber,  1823  :  That  the  said  John  Brnbacker  and  L  J 
Christian  Roop  give  the  said  Henry  Brubacker  a  credit  for 
one-third  part  of  the  appraised  vahie  of  the  Ohio  land:" 
and  also  contained  some  otiier  matters  not  necessary  to  be  here 
stated. 

Christian  Roop  brought  this  suit  against  Henry  Brubacker, 
and  it  is  for  del)t  on  settled  account  by  reference.  In  his 
statement,  he  says  he  claims  a  debt  due  him  by  the  defendant, 
on  a  settlement  made  between  them  by  the  referees,  (naming 
them,)  and  proceeds  to  set  out  the  submission  and  award  at 
full  length,  and  then  avers  there  is  due  to  him  one-third 
part  of  the  balance  found  in  the  hands  of  H.  Brubacker, 
being  one  hundred  and  forty-nine  dollars  and  fifty-four  cents, 
and  also  the  sura  of  forty  dollars  and  fifty-one  cents,  and  some 
matters  not  necessary  to  be  stated,  and  proceeds : — "  and  the 
further  sum  of  six  hundred  dollars,  being  one-third  part  of 
the  value  of  the  Ohio  land,  which  the  plaintiff  and  John 
Brubacker  were  willing  and  desirous  to  have  taken  at  a  just 
and  reasonable  valuation  according  to  the  article  of  agree- 
ment entered  into  by  and  between  the  parties,  dated  the  2d 
of  September,  1823;  and  the  said  plaintiff  further  avers, 
that  he  has  often  before  the  bringing  of  this  suit,  requested 
the  said  Henry  Brubacker  to  have  the  said  Ohio  lands  valued 
according  to  the  aforesaid  article  of  agreement,  and  then  to 
convey  the  same  to  him  and  the  said  John  Brul)acker,  but 
the  said  Henry  hath  always  refused ;"  and  then  he  states  an 
account  of  all  the  items  of  his  claim,  and  avers  them  to  be  all 
due,  and  proceeds: — "and  the  said  plaintiff  further  avers,  that 
the  said  Henry  Brubacker  has  assumed,  promised,  and  under- 
taken, to  pay  him  the  said  amount  of  nine  hundred  and  eighty 
dollars  and  eighty-eight  cents,  and  interest  from  the  9th  of 
October,  1823." 

I  shall  not  undertake  to  decide  whether  this  is  a  statement 
under  our  act  of  assembly  or  a  declaration  ;  or  both,  or  neither. 
The  defendant  made  no  objection  to  it  and  makes  none  now. 
To  this  the  defendant  pleaded  payment,  with  leave  to  give  the 
special  matter  in  evidence,  and  gave  notice  in  writing  of  all  the 
matters  which  he  offered  in  evidence,  and  particularly  of  tlie 
deficiency  in  the  quantity  of  land  sold  to  Henry. 

On  the  trial  the  jury  found  for  the  plaintiff  ninety-two  dollars 
and  thirty  cents,  leaving  the  Ohio  lands  out  of  the  consideration 
of  tlie  jury. 

There  was  a  motion  for  a  new  trial  which  was  overruled,  and 
an  appeal  to  this  court.  The  principal  reasons  relied  on  were, 
that  the  court  permitted  evidence  to  show  that  Henry  Bru- 

343 


306  SUPREME  COURT  [Lancaster, 

[Roop  V.  Brubacker.] 

backer,  who  was  charged  with  eiglity-nine  acres  and  a  lialf  of 
land  at  tliirty  dollars  and  twenty-five  cents  per  acre,  actnally  got 
about  ten  acres  less  land,  and  permitted  the  arbitrators  to  prove 
that  they  did  not  measure  the  land  or  consider  the  quantity  in 
dispute  before  them  ;  that  all  parties  before  them  assuine<l  that 
to  Ik?  the  quantity ;  that  nothing  was  said  about  it,  and  they 
calculated,  sis  the  award  showed,  on  that  basis ;  and  one  of  the 
r*'^07l  *ai'bitrators  proved,  that  since  the  award,  he  had  resur- 
L  -I  veyed  the  land,  and  that  the  real  quantity  was  seventy- 
nine  acres  and  some  perches. 

This  point  was  argued  as  if  the  judge  had  admitted  testimony 
to  contradict  and  set  aside  the  award,  and  received  this  testi- 
mony by  the  oath  of  the  arbitrators.  To  put  the  sanctity  of  an 
award  on  the  highest  ground  ever  assumed,  it  is  no  greater  than 
a  judgment  of  a  court ;  but  a  judgment  is  not  conclusive  of  any 
matter  not  in  contest  and  not  decided  on.  And  in  this  case  all 
that  was  admitted  was  that  the  quantity  of  land  in  the  part  sold 
to  Henry  Brubacker,  was  not  in  question,  not  disputed,  and  not 
considered  as  in  dispute,  and  of  course,  not  decided  on  by  the 
arbitrators.  It  was  then  open  to  proof  in  this  case,  and  one  of 
the  arbitrators  who  re-surveyed  it,  was  as  competent  a  witness 
as  any  other  man,  to  prove  the  real  quantity.  The  arbitrators 
may  be  examined  to  prove  whether  a  matter  was  acted  on  by 
them,  or  to  prove  a  mistake  made  by  them,  2  Johns.  Ch.  Rep. 
276. 

The  next  objection  was  to  the  Ohio  lands.  The  plaintiif  re- 
lied on  a  right  to  recover  as  to  them,  because  he  had  set  out  the 
award  correctly,  viz.  :  '*  That  John  Brubacker  and  Jacob  Roop 
do  take  the  Ohio  land  at  a  just  and  reasonable  valuation,  to  be 
fixed  agreeably  to  the  articles  of  agreement  entered  into  Iwtween 
the  parties,  dated  the  2d  of  September,  1823 :  That  the  said 
John  Brubacker  and  Christian  Roop,  give  the  said  Henry  a 
credit  for  the  one-third  part  of  the  ap])raised  value  of  the  Ohio 
land,"  and  had  averred  in  the  said  narr.  or  statement,  "  that  he 
believes  there  is  justly  due  to  him  by  the  defendant,  the  further 
sum  of  six  hundred  dollars,  being  the  one-third  part  of  the  value 
of  the  Ohio  lands  which  the  plaintiff  and  John  Brubacker  were 
willing  and  desirous  to  have  taken  at  a  just  and  reasonable 
valuation,  according  to  the  article  between  the  said  parties,  dated 
the  2d  of  September,  ]823;  and  the  plaintiif  avers,  that  he  has 
often  requested  the  defendant  to  have  the  said  land  valued  ac- 
cording to  the  said  article  of  agreement,  and  then  to  convey  to 
the  plaintiff  and  John  Brubacker,  but  the  said  Henry  has  always 
refused."  As  the  defendant  had  pleaded  payment,  with  leave, 
&c.,  the  plaintiff  contended  this  admitted  the  truth  of  every 
averment  in  the  declaration.  If  this  were  true,  it  would  not 
344 


Jww€  1,1829.]  OF  PEXXSYLVAXIA.  307 

[Roop  V.  Brubacker.] 

avail  him,  for  he  has  only  averred  tliat  he  believes  the  Ohio  lands 
are  of  such  value  as  that  his  one-third  is  worth  six  hundred  dol- 
lars ;  and  nobody  ever  before  suj)posed  an  averment  of  damages 
for  breach  of  covenant  or  ])romise  was  anything  on  which  a  jury 
could  act.  No  testimony  was  given  or  offered  respecting  those 
lands.  They  were  not  mentioned  by  any  witness  and  no  docu- 
ment, except  the  will  and  award  was  before  the  court  in  which 
they  were  even  nametl.  I  do  not  rely  on  the  defect  of  the  aver- 
mejit,  which  omits  to  state  that  tiie  plaintiif  offered  to  choose 
men  to  value  them,  and  offered  to  give  Henry  the  credit,  etc. ; 
but  I  deny  totally  the  position  that  tiie  plea  of  payment  admits 
in  any  case  any  material  averment,  except  the  ^execution  (-;;:. jnsi 
of  tiie  paper,  and  except  what  is  admitted  by  the  general  L  '^  J 
issue  in  every  action,  viz.  :  that  the  jilaintilf  and  delendant  are 
the  parties  who  have  a  right  to  sue,  etc. 

The  act  for  defalcation,  passed  in  1705,  gave  the  first  legisla- 
tive authority  to  courts  of  la\v,  for  exercising  chancery  ])ower. 
It  is  the  germ  from  which  all  the  equitable  power  of  our  courts 
over  contracts  sprang ;  it  is  of  daily  use,  and  without  it  or  a  sub- 
stitute for  it,  the  justice  of  half  our  causes  could  not  be  attained. 
We  have  a  thousand  adjudged  cases  on  it ;  these  are  not  exactly 
in  terms  the  same,  principally  because  wlien  brought  into  con- 
sideration as  to  a  particular  question,  and  in  a  particular  aspect, 
the  expression  of  judges  then  used,  and  which  only  relate  to 
the  case  before  them,  are  improperly  considered  as  genei'al,  ap- 
plicable to  all  cases,  and  intended  so  by  the  judge,  a  most  fruitful 
source  of  loose  argument,  and  often  of  something  worse.  As 
we  find  this  fact  alluded  to  in  many  ca-es,  we  often  look  only 
to  the  cases.  The  act  is  actually  iniknown,  or  aifected  to  be 
unknown.  It  is  a  common  expression,  that  it  ajiplies  only  to 
sealed  instruments;  and  we  have  one  reported  case  in  which  it 
is  decided  there  can  be  no  set-off,  and  that  no  siun  can  be  found 
in  favour  of  a  defendant  under  this  i\ct ;  whereas  no  sum  can  be 
found  in  favour  of  a  defendant  except  under  the  ex[)ress  pro- 
visions of  this  act. 

It  is  as  follows  : — 

"  If  two  or  more  dealing  together,  bo  indebted  to  each  other 
upon  bonds,  bills,  bargains,  pi'omises,  accounts,  or  the  like,  and 
one  of  them  commence  an  action  in  any  court  in  this  ])rovince; 
if  the  defendant  cannot  gainsay  the  deed,  Ixirgain  or  assninption 
upon  which  he  is  sued,  it  shall  be  lawful  for  the  defendant  to 
plead  payment  of  all  or  part  of  the  del)t  or  sum  demanded,  and 
give  any  bond,  bill,  receipt,  account,  or  bargain  in  evidence; 
and  if  it  shall  a|)pear,"  etc.,  and  after;  "  but  if  it  shall  ap])(ar 
the  plaintiif  is  overpaid,  then  they  shall  give  their  verdict  for 

345 


308  SUPREME   COURT  [Lancaster, 

[Hoop  V.  Brubacker.] 

the  defendant,  and  certify  witlial  to  the  court  how  much  they 
find  the  plaintiff  to  be  indebted,"  &c. 

The  old  cases  go  to  extend  the  benefits  of  this  act,  and  some 
of  the  modern  ones  are  of  the  same  description ;  Steigleman  v. 
Jeffries,  1  Serg.  &  Rawle,  467,  and  Heck  v.  Shener,  4  Serg.  & 
Rawle,  249.  In  1  Dall.  258,  McKean,  C.  J.,  in  an  im])ortant 
case,  in  which  he  tells  us  he  delivered  the  unanimous  oj)inion  of 
the  court,  says  the  plea  of  payment,  with  leave,  is  niade  the 
general  issue  by  the  law  of  this  state ;  and  further,  on  the  plea 
of  payment  in  an  action  on  a  bond,  and  when  the  issue  is 
joined  on  this  plea,  the  jury  may  and  ought  to  presume  every 
thing  to  have  been  paid,  which  ex  equo  et  bono,  in  equity  and 
good  conscience  ought  not  to  be  paid ;  such  is  the  current  of  the 
determinations  in  the  Court  of  Chancery  in  England  ;  for  though 
courts  of  justice  cannot  alter  or  destroy  the  contract  of  the 
parties,  they  may  interfere  to  render  it  conformable  to  reason, 
justice,  and  conscience.  It  would  be  tedious  to  go  through  all 
r*'^nQl  ^^^®  cases  from  1  Dall.  17,  that  mistake  or  want  *of 
L  -J  consideration  may  be  given  in  evidence  under  this  plea. 
That  the  defendant  "  was  unlettered,"  may  be,  or  that  a  bond 
given  for  one  purpose  was  used  for  another,  2  Binn.  154;  that 
the  note  was  given  for  land  held  under  the  Connecticut  title; 
that  it  was  given  for  tickets  in  an  illegal  lottery ;  in  short, 
we  have  cases  which  meet  every  possible  case  of  defence  of  every 
kind,  which  go  to  show  the  plaintiff  ought  not  to  recover.  The 
plea  is  then  a  special  defence  or  a  general  one,  as  the  notice 
makes  it  one  or  the  other.  To  be  sure,  it  admits  tlie  execution 
of  the  instrument,  or  the  having  made  a  bargain,  but  notliing 
more.  So  entirely  is  this  the  case,  that  when  the  plaintiff  de- 
clares on  a  bond  or  note,  he  can  indeed  read  it  without  calling 
the  subscribing  witnesses  or  proving  the  handwi-itiug,  but  the 
bond  or  note  must  be  produced  and  read  to  the  court,  or  its  loss 
proved  and  the  purport  of  it,  or  there  can  be  no  recovery  ;  and 
this  is,  and  has  been  the  universal  practice  and  uniform  decision 
of  every  court  of  late,  and  only  of  fate  have  we  heard  of  matters 
being  admitted  by  the  plea  of  payment.  This  idea  arose  from 
considering  what  could  be  proved  under  that  plea  at  common  law, 
where  its  nature  and  meaning  were  totally  different  from  the  one 
attached  to  it  under  our  act :  under  that  act,  it  is  a  general  issue, 
or  it  is  absurd.  The  action  against  an  indorser  may  be,  j)er]uips 
ought  to  l)e,  debt  under  the  present  law  of  this  state.  Payment, 
with  leave,  &c.,  would  be  a  good  plea  :  it  is  a  usual  one.  The 
handwriting  of  the  indorser  need  not  be  proved,  but  no  court  has 
yet  been  called  on  to  decide  that  the  plaintiff  is  not  bound  to 
prove  demand  of  the  maker,  and  refusal.  Debt  is  the  only  ac- 
tion on  a  book  account  now.  The  statement,  unless  it  is  de- 
346 


June  1,1829.]  OF   PENNSYLVANIA.  309 

[Roop  V.  Brubacker.] 

manded,  need  not  give  tlie  particular  items,  nor  specify  price  of 
each  article,  but  must  give  the  date  of  the  commencement  and 
end  of  the  account,  and  state  a  sum  as  the  amount.  I  do  not 
know  tliat,  although  non  assumpsit  was  tlie  usual  j)loa  while  the 
action  was  assumpsit,  that  it  is  so  now  it  is  changed  to  debt : 
payment  with  leave  is  the  proper,  or  at  least  is  a  proper  plea. 
I  have  not  seen  an  attempt  to  recover  without  producing  the  book 
of  original  entries,  and  as  the  plaintiff  must,  on  this  plea,  pro- 
duce his  bond  or  note,  the  lawyer  who  would  direct  his  client  to 
go  to  trial  without  any  evidence,  would  not  succeed.  In  Schlatter 
V.  Etter,  13  Serg.  &  Rawle,  36,  something  on  this  subject  will 
be  found.  The  abstract  of  the  case  is  not  fully  correct.  That 
the  plea  of  payment,  with  leave,  to  a  statement,  does  not  admit 
any  fact  not  mentioned  in  the  statement ;  if  essential,  the  plain- 
tiff must  prove  it,  is  true :  but  the  case  decided  more  than  that. 
It  was  a  suit  for  the  difference  between  certain  country  notes 
paid  by  the  defendant  to  the  plaintiff,  and  city  notes;  and  the 
statement  did  aver  an  agreement  by  the  defendant  to  pay  this 
difference,  provided  it  did  not  exceed  ten  ])er  cent.,  and  he  pro- 
duced the  defendant's  agreement  in  writing,  ex])ressly  to  this 
effect,  and  he  expressly  averred  'Hhat  the  discount  and  differ- 
ence in  exchange  on  the  above  notes,  amounted  to  two  hundred 
and  eleven  dollars  and  eighty-four  cents,  being  *eight  r^oinT 
per  cent. ;  that  thirty-five  dollars  in  ])art  had  been  paid  L  '^  J 
by  the  defendant,  but  that  one  hundred  and  seventy-six  dollars 
and  eighty-four  cents  remained  due,"  &c. ;  and  the  decision  was 
that  the  plaintiff  could  not  recover  without  ])roving  that  the 
notes  paid  in,  w^ere  not  at  par,  and  without  proving  what  was 
the  actual  discount.  I  am  not  aware  that  any  possible  plea  would 
have  enabled  the  plaintiff  to  obtain  a  verdict  in  this  case  as  to  the 
Ohio  lands  without  some  proof  of  their  value,  and  also  some 
evidence  as  to  an  attempt  by  the  plaintiff  at  an  offer  to  have 
them  valued. 

In  15  Serg.  &  Rawle,  105,  106,  Duncan,  J.,  says,  in  speaking 
of  this  plea,  which  had  been  ])ut  into  a  bond  of  indemnity, "  What 
I  understand  by  this  is,  that  it  puts  everything  in  issue  contained 
in  the  notice  of  defence  which  protects  the  defendant,  but  it  admits 
the  execution  of  the  deed  set  out,  and  the  conditions  expressed 
in  it." 

To  make  the  most  of  it,  a  ])lea  may  admit  a  contract  as  set  out, 
buf  if  the  suit  is  for  damages  for  non-])erformance  of  that  con- 
tract, the  damages  must  be  jH'oved,  or  a  jury  give  nominal  dam- 
ages. I  am  not  aware  that  it  was  ever  before  contended  that 
any  ]ilea  admitted  the  averment  of  damages,  for  breach  of  an 
agreement  to  be  as  set  out,  unless  where  the  amount  was  part  of 
the  airreement.    There  was  then  no  error  in  this  direction  to  the 

347 


310  SUPREME  COURT  [Lancaster, 

[Roop  V.  Brubacker.] 

jury,  that  as  no  evidence  had  been  given  relative  to  the  Ohio 
lands  or  the  value  of  them,  they  could  not  undertake  to  decide 
on  their  value,  especially  in  this  action  on  a  settled  account. 

By  the  19th  section  of  the  act  of  the  2d  of  April,  1803,  no 
cause  shall  be  removed  from  any  Court  of  Common  Pleas  to  the 
Circuit  Court,  unless  the  plaintiff's  demand  or  the  value  of  the 
controversy  between  the  parties,  shall  exceed  the  sum  of  five 
hundred  dollars;  and  the  next  section  directs  that  the  court 
wherein  the  said  action  shall  be  tried,  shall  have  power  to  make 
the  party  that  removed  the  same  pay  the  costs  of  suit,  if  in  the 
opinion  of  the  said  court,  the  action  shall  have  been  removed 
without  a  reasonable  foundation  of  its  being  within  the  true  spirit 
of  and  meaning  of  the  aforesaid  section. 

The  plaintiff  removed  this  cause  and  recovered  less  than  one 
hundred  dollars,  and  gave  no  evidence  or  offered  no  evidence  to 
prove,  any  demand  exceeding  five  hundred  dollars ;  and  as  fur- 
ther it  is  not  apparent,  how  under  that  award,  and  in  this  suit, 
any  such  evidence  could  be  offered,  the  court  ordered  and  ad- 
judged the  plaintiff  to  pay  the  costs.  In  this  there  was  no  mis- 
take. The  Circuit  Court  sits  in  each  county  but  once  a  year. 
The  legislature  intended  its  time  should  not  be  occupied  by 
trifling  demands ;  the  law  requires  a  certificate  of  the  counsel 
who  removes  it,  that  he  verily  believes  it  is  within  the  true 
spirit  and  meaning  of  the  act ;  it  cannot  be  ])ermitted  to  evade 
the  law  by  inserting  in  the  narr.  or  statement,  a  matter  which 
cannot  be  or  is  not  intended  to  be  tried,  and  thus  raise  the  de- 
mand beyond  five  hundred  dollars.  Aware  that  causes  might 
be  removed  without  minute  investigation  of  the  amount  really 
claimed,  this  penalty  was  intrusted  to  the  court,  and  will  l)e 
applied  in  all  proper  cases. 

Judgment  affirmed. 

ated  by  Counsel,  1  Wh.  64;  4  Wh.  244:  3  W.  &  S.  445;  5  W.  &  S.  264; 
8  Barr,  119  ;  10  Barr,  57  ;  32  S.  147  ;  s.  c.  2  W.  N.  C.  87. 


3iS 


June  1,1829.]        OF  PENNSYLVANIA.  311 


♦[Lancaster,  June  1,  1829.]  [*311] 

The  Commonwealth,  for  the  use  of  Mishey  and  Others, 
against  Brenneman  and  Another,  Administrators  of 
Brenneman. 

IN   ERROR. 

In  an  action  on  a  recognisance  entered  into  in  partition,  in  which  the  plea 
is  a  release,  and  the  replication,  that  the  release  was  without  consideration, 
fraudulent,  and  void,  evidence  is  not  admissible  under  the  replication,  to  show 
that  though  the  release  was  expressed  to  be  for  a  full  consideration,  none  was 
paid ;  and  that,  to  induce  the  releasors  to  execute  the  instrument,  the  releasee 
artfully  and  fraudulently  represented,  that  if  they  would  execute  it  he  would 
pay  them  afterwards,  and  that  the  administrators  of  the  releasee  retained  in 
their  hands  money  to  meet  the  claim  of  the  releasors. 

Nor  is  evidence  admissible  to  show,  (where  third  persons  are  interested,) 
that  the  release  was  induced  by  the  purchaser  of  the  share  of  one  of  the 
heirs  refusing  to  pay  without  a  release  from  all  the  heirs :  That  they  agreed 
to  meet  his  wishes,  upon  his  p.iying  only  the  purchase-money  of  the  share  he 
had  bought :  That  there  w;is  an  understanding  among  the  heirs,  that  tli«  re- 
lease was  to  operate  only  in  favour  of  the  purchaser ;  and  that  among  them- 
selves, though  absolute  in  form,  it  was  to  remain  inoperative  until  those  who 
took  the  land  at  the  appraisement,  paid  to  each  of  the  heirs  the  share  of  the 
valuation  money. 

On  a  general  allegation  of  misrepresentation  and  fraud,  a  party  may  be  com- 
pelled to  specify  the  evidence  on  which  he  relies  to  establish  fraud. 

On  the  return  of  a  writ  of  error  to  the  District  Court  for  the 
city  and  county  of  Lancaster,  it  appeared  from  the  three  bills 
of  exceptions  which  came  up  with  the  record,  that  this  was  an 
action  of  debt  on  a  recognisance,  brought  in  the  name  of  the 
Commonwealth,  for  the  use  of  Jacob  Mishey,  Samuel  Easier, 
Michael  Brenneman,  Jr.,  and  Thomas  Eagar,  assignees  of  Chris- 
tian Longenecher,  Jr.,  administrator  of  Feronica  Longenecher, 
deceased,  late  wife  of  said  Christian,  and  who  was  a  daughter 
of  Henry  Brennemann,  deceased,  against  John  Brenneman  and 
John  Jack,  administrators  of  Plenrv  Brenneman,  the  younger, 
deceased,  with  notice  to  Elizabeth  Brenneman,  widow  of  the 
said  Henry  Brennemann,  the  younger,  and  John  Brenneman, 
terre-tenants. 

The  defendants  pleaded   "a  release  and  payment,"  <Src.,  to^ 
which   the   plaintiifs   replied,   "  release   without   consideration, 
fraudulent,  and  void,  non  solverunt  and  issue." 

On  the  trial,  after  the  plaintitls  had  given  in  evidence  the 
record  of  an  inquisition  in  partition,  the  recognisance  entered 
into  by  Henry  Brennemann,  the  younger,  and  others,  and  other 
evidence  necessary  to  make  out  their  case,  the  defendants  ex- 

349 


311  SUPREME  COURT  [lAincaster, 

[The  Commonwealth,  for  the  nse  of  Mishey  and  others,  r.  Brenneman  and 
another.  Administrators  of  Brenneman.] 

amined  John  Brandt,  who,  after  liavinjj^  proved  the  execution  of 
the  release,  to  wliich  he  wits  a  subscribing  witness,  testified  as 
foMows  : — "  It  (the  release,)  was  done  at  Jacob  Barr's  house,  in 
Maytown  ;  Abraliani  Shock  had  purchased  the  land  of  old 
r*'^19l  ^•'^"nenian's  son,  Jacob,  *the  share  which  he  took,. 
L  "^-J  and  he  paid  five  or  six  thousand  dollars  on  the  table,  to 
the  parties  to  the  release.  It  was  paid  on  the  lump,  and  they 
were  to  divide  it  as  they  pleased.  Christian  Longenecher  got 
some  money.  Do  not  know  that  Henry  Brenneman  paid  any 
money  for  his  share.  Shock  would  not  pay  any  money  till  all 
released.  I  don't  know  that  Henry  Brenneman  paid  any  money 
at  that  time — not  a  dollar  paid  at  that  time,  except  what  Abra- 
ham Shock  paid."  The  defendants  then  gave  in  evidence  a 
release  from  Christian  liongenecher  and  wife  to  Henry  Brenne- 
man, the  younger,  dated  the  first  of  April,  1819,  when  the  plain- 
tiffs made  the  following  offer  of  evidence  : — "  The  plaintiffs,  in 
support  of  their  replication  to  the  plea  of  a  release,  that  it  was 
without  consideration,  fraudulent,  and  void,  offer  to  prove,  in 
addition  to  the  testimony  and  evidence  already  given,  that  the 
release  w^as  procured  by  Henry  Brenneman,  to  be  drawn  before 
the  time  of  execution,  as  executed  for  full  consideration,  when 
he  had  not  the  consideration  money  to  pay  :  That  to  induce 
Christian  L/ongenecher  and  wife  to  execute  the  release,  he  art- 
fully, and  fraudulently  represented,  that  they  should  execute 
the  release  without  receiving  the  purchase-money;  that  he  would 
pay  them  the  money  afterwards,  and  that  they  might  rely  on 
his  doing  so  if  they  would  release  :  That  they.  Christian  Longe- 
necher and  wife,  relying  on  the  assurances  so  given,  execute<l 
the  release,  without  receiving  any  consideration  therefor  :  That 
not  a  cent  of  the  consideration  of  the  said  release  was  ever  paid  : 
That  Henry  Brenneman  died  in  July,  1822  :  That  notice  was 
given  to  his  administrators  of  this  claim,  and  that  they  have  re- 
tained the  amount  of  this  claim,  and  now  have  it  in  their  hands  ; 
and  that  on  the  same  day,  and  immediately  after  the  execution 
of  the  release  by  them,  Henry  Brenneman  told  Christian  Longe- 
necher, that  he  had  some  claim  against  the  wife,  and  that  he 
should  come  to  his  house  shortly,  and  would  settle  and  satisfy 
him,  which  he  never  did  do." 

The  counsel  for  the  defendants  having  objected  to  the  evidence 
thus  offered,  the  court  sustained  their  objection,  and  sealed  the 
first  bill  of  exceptions. 

After  the  evidence,  offered  as  above,  had  been  rejected,  the 

plaintiffs  offered  to  prove,  "  That  the  release  given  in  evidence 

by  the  defendants,  was  induced  by  the  purchaser  of  Jacob's 

share  refusing  to  pay  without  a  release  being  executed   by  all 

350 


June  1,1 8-29.]         OF   PEXXSYIA^\XTA.  312 

[Tlie  Commonwealth,  for  the  use  of  Mishey  and  otliers,  r.  P)rennenian  and 
another,  Administrators  of  Brenneman.] 

the  heirs,  and  tliat  the  lieir.s  of  Heiirv  Breiiuenian,  the  elder, 
agreed  to  meet  the  \vi,-;he.s  of  the  j)iirehaser,  bv  exeeutino;  the 
release  upon  his  ])ayint!;  the  purehase-nioney  of  the  share  he  had 
bought,  whieh  was  assigned  to  Jaeob,  under  a  full  understanding 
amongst  themselves,  that  it  was  to  operate  in  favour  of  the  pur- 
chaser only  ;  and  that,  as  amongst  rliemselves,  as  the  heirs  Avho 
had  takeu  land  at  tin;  a])praisement,  M-ere  not  then  prepared  to 
})ay  tiie  purparts  belonging  to  the  other  heirs,  the  release, 
though  in  form  absolute,  was  to  be,  and  *remain  inop-  r^:oio-| 
erative,  until  the  persons  taking  the  lands,  paid  to  eaeh  L  "^  -I 
of  the  heirs,  their  share  in  the  valuation  money  :  That  under 
this  understanding,  nuitually  entertained  and  agreed  to  by  all 
the  heirs,  the  release  was  e.xeeuted,  ujion  the  paymeut  of  the 
money  by  Mr.  Sehoek  only  :  That  Henry  Brenneman,  the  son, 
did  not  pay  anything  to  any  of  the  heirs,  on  exeeutinix  the  re- 
lease, but  agreed  to  do  so,  notwithstanding  the  release,  at  a  sub- 
sequent time  :  That  ])ayment;*  were  made  by  Henry  Brenneman, 
in  his  life  time,  to  all  the  heirs  but  Christian  Lougeneeher  and 
Feroui(!a,  his  wifj,  to  whom  not  a  eent  has  ever  been  paid  of  her 
share  in  the  land  takeu  by  her  brother,  Henry  Brenneman." 
The  defendants  objeeted  to  the  evidcnee  offered,  and  the  eourt 
would  not  permit  it  to  be  given  ;  upon  which  the  second  bill  of 
exceptions  was  tendered  by  the  ])laiuti{fs'  counsel  and  sealed 
by  the  eourt. 

From  the  third  bill  of  exce])tions,  it  a]i]ieared,  that  the  plain- 
tiffs having  produced  a  witness,  the  defendants'  counsel  called 
upon  them  to  state  in  writing  the  evidence  intended  to  be  given  ; 
and  the  court  having  sustained  the  requisition,  the  plaintiffs' 
counsel  offered  to  prove.  "That  at  the  time  of  the  execution  of 
the  release,  given  in  evidence  by  the  defendants,  no  pait  of  the 
consideration  money  (being  the  share  coming  to  Feronica,  the 
wife  of  Christian  Lougeneeher,  on  the  valuation),  was  ]>aid  by 
her  brother,  Henry  ]5reiuiemau  ;  but  that  the  said  Christian 
Ijongenecher,  and  Feronica,  his  wnfe,  were  induced  by  the  said 
Henry  Brenneman,  to  execute  the  said  deed,  without  receiving 
the  consideration  money,  by  the  fraud  and  contrivance  of  the  said 
Henry,  artfidly  and  falsely  im]M)sed  uj)on  them,  by  false  represen- 
tations made  to  them  on  the  day,  and  at  the  time  of  the  execu- 
tion of  the  said  deed  by  them,  which  ins))ired  them  with  a  con- 
fidence in  his  representations,  that  was  betrayed  ;  and  that  the 
said  Henry  Brenneman,  who  took  the  land  at  the  appraisement. 
died  in  July,  1822."  The  counsel  for  the  defendants  objected 
to  this  offer,  and  the  admission  of  evidence  under  it,  as  not  con- 
taining a  statement  of  any  facts,  acts,  or  conversations  intendcxl  lo 
be  given  in  evidence,  but  merely  a  general  allegation,  that  fraud, 

351 


313  SUPREME  COURT  [Lancaster, 

[The  Commonwealth,  for  the  use  of  Mishey  nnd  others,  ».  Brenneman  and 
another,  Administrators  of  Jirenneman.] 

contrivance,  and  falsehood,  were  practised  by  Henry  Brenne- 
man, relative  to  the  X'clease,  and  as  not  Ix'ing  a  compliance  with 
the  requisition  of  the  court,  nor  with  the  rules  and  practice  of 
courts,  in  requiring  a  ])arty,  when  recpiested  by  the  opposite 
party  to  reduce  to  writing  the  testimony  offered.  It  was  like- 
wise objected  to,  as  being  irrelevant  to  the  Issue ;  but  no  ob- 
jection was  made  to  proving  the  time  of  Henry  Brenneman's 
death. 

The  court  decided,  that  evidence  should  be  received  to  show, 
that  the  release  was  obtained  by  mistake,  fraud,  or  misre])resen- 
tation  :  That  to  enable  the  court  to  decide  on  the  competency 
and  admissibility  of  the  evidence,  the  plaintiffs  should,  in  their 
offer,  specify  the  evidence  by  which  they  sought  to  establish 
these  matters;  which  not  being  done,  the  court  rejected  so  much 
r**^14l  ^^  ^^^^  evidence  *off'ered,  as  was  objected  to  by  the  de- 
L  J  fendauts'  counsel,  and  admitted  the  residue.  To  this 
opinion  of  the  court  the  j)laintiffs'  counsel  excepted. 

On  the  argument  in  this  court,  Jenkins  and  Hopkins  for  the 
l)laintiffs  in  error,  cited  2  Bl.  Com.  300 ;  7  John.  Ch.  Rep.  102; 
2  John.  Ch.  Rep.  35;  1  Madd.  Ch.  263  ;  Hamilton  v.  M'Guire's 
Executors,  3  Serg.  &  Rawle,  355 ;  Miller  v.  Henderson,  10  Serg. 
t^  Rawle,  290;  Hain  u.  Kalbach,  14  Serg.  &  Rawle,  159;  10 
Mass.  Rep.  456 ;  Christ  v.  Diffenbach,  1  Serg.  &  Rawle,  464 ; 
Broderick  v.  Broderick,  1  P.  AVms.  239. 

Evans  and  Ellmaker  for  the  defendants  in  error,  cited  Wentz 
V.  De  Haven,  1  Serg.  &  Rawle,  317  ;  Coe  v.  Hutton,  1  Serg.  & 
Rawle,. 398  ;  Heilner  v.  Imbrie,  6  Serg.  &  Rawle,  411;  Cozens 
r.  Stevenson,  5  Serg.  &  Rawle,  424 ;  Iddings  v.  Iddings,  7  Serg. 
&  Rawle,  114  ;  11  Mass.  Rep.  347  ;  Wolverton  v.  The  Common- 
wealth, 7  Serg.  &  Rawle,  273. 

The  opinion  of  the  court  Avas  delivered  by 

Rogers,  J. — This  was  an  action  of  debt  on  recognisance,  to 
which  the  defendants  pleaded  payment  and  release.  Re]ilica- 
tion,  release  without  consideration,  fraudulent  and  void,  non 
solverunt  and  issues.  To  maintain  the  replication,  the  plaintiffs 
offered  to  prove,  "  that  Henry  Brenneman  procured  the  release 
to  be  drawn  before  the  time  of  execution,  as  executed  for  full 
consideration,  when  he  had  not  the  consideration  money  to  pay  : 
That  to  induce  Christian  Longenecher  and  wife  to  execute  the 
release,  he  artfully  and  fraudidently  represented,  that  they 
should  execute  it  without  receiving  the  purchase-money  :  That 
he  would  pay  them  afterwards,  and  that  they  might  rely  upon 
352 


June  1,  1829.]        OF  PEJTNSYLVANIA.  314 

[The  C!ommonwealth,  for  the  use  of  Mishey  and  others,  v.  Brenneman  and 
another,  Administrators  of  Brenneman.] 

his  so  doing,  if  they  would  release :  That  Christian  Longene- 
cher  and  wife,  relying  on  the  assurance  so  given,  executed  the 
release,  without  receiving  one  cent  of  consideration :  That 
Henry  Bpenneman  died  in  July,  1822,  and  that  upon  notice 
being  given  to  his  administrators,  they  have  retained  the 
amount  of  the  claim,  and  now  have  it  in  their  hands :  That  ou 
the  same  day,  or  immediately  after,  Henry  Brenneman  told 
Christian  Longenecher  that  he  had  some  claim  against  his  wife : 
That  he  should  come  to  his  house  shortly,  and  would  settle  with 
and  satisfy  him,  which  he  never  did." 

It  appears  that  Abraham  Schock,  who  had  purchased  the 
share  taken  by  Jacob,  at  the  appraisement  of  the  real  estate  of 
his  father,  Henry  Brenneman,  refused  to  pay  the  purchase- 
money,  unless  all  the  heirs  would  execute  releases.  In  pursu- 
ance of  this  family  arrangement,  and  to  accommodate  a  rela- 
tive, they  agreed  to  execute  them,  and  to  substitute  a  promise 
to  pay  a  future  day.  This,  it  is  contended,  supports  the  repli- 
cation of  fraud  and  want  of  consideration.  Without  resorting 
to  the  technical  importance  attached  to  an  instrument  under 
seal,  here  was  a  sufficient  consideration  to  *support  r^oi  r-j 
an  action  on  the  promise  to  pay.  By  the  contract,  ■-  ^ 
which  the  parties  had  an  undoubted  right  to  make,  one  species 
of  debt  is  substituted  for  another.  In  a  suit  on  the  promise^ 
Henry  Brenneman  could  not  defend  himself  upon  the  allegation 
of  a  want  of  consideration.  Such  a  transaction  as  this  is  by  no 
means  uncommon,  where,  by  the  release  of  an  heir,  you  enable 
another  to  dispose  of  his  property,  which  he  would  otherwise  be 
unable  to  eifect.  If  Christian  Longenecher  and  wife  have  lost 
their  share  of  the  estate,  it  is  certainly  a  misfortune,  but  one, 
however,  of  their  own  choosing ;  and  I  am  at  a  loss  to  see  any 
thing  in  the  transaction,  which  supports  the  replication  of  fraud. 
The  court  excluded  the  testimony,  because  not  supporting  the 
issue,  it  could  have  no  legal  effect.  The  amount  of  the  plain- 
tiffs' offer  is,  to  prove  a  non-compliance  with  the  contract  of 
Henry,  that  he  would  pay  the  amount  of  Christian  Longenecher's 
wife's  share,  in  consideration  of  the  execution  of  the  release, 
and  for  this  the  law  has  provided  him  his  appropriate  remedy. 
There  is  no  doubt,  that  in  the  breach  of  promise,  Henry  Brenne- 
man, in  a  moral  point  of  view,  was  guilty  of  fraud ;  but  it  was 
no  more  fraudulent  than  any  other  breach  of  trust,  or  of 
promise.  There  was  no  false  representation,  or  concealment  of 
any  existing  fact,  which  constitutes  the  legal  idea  of  fraud ;  for 
there  is  no  doubt,  (at  least  the  contrary  is  not  alleged),  he  re- 
ligiously intended  to  perform  his  part  of  the  contract,  but  was 
prevented   by  the  pressure  of  misfortune,  or  some  casualty, 

VOL.  I.-23  353 


315  SUPREME  COURT  [Dmcu^t^, 

[The  Commonwealth,  for  the  use  of  Mishcy  and  otliers,  v.  Brenneman  and 
another,  Administrators  of  Brenneman.] 

which  usuully  occurs  in  cases  of  those  who  are  unable  to  comply 
with  their  enjrajji;ements.  There  is  no  pretence  to  say,  that  he 
used  any  surreptitious  or  undue  means  to  obtain  the  release,  or 
that  he  practised  such  acts,  or  made  use  of"  such  false  tokens  or 
finesse,  as  usually  lay  the  foundation  of  an  action  of  deceit. 
Boyd  V.  Stone,  11  Mass.  Rep.  347.  If  a  man  purchase  a  horse, 
on  a  promise  to  pay  in  three  days,  a  failure  to  pay  at  the  time 
does  not  annul  the  contract,  and  revest  the  right  of  ])roperty  ; 
but  the  remedy  is  a  suit  for  the  purchase-money.  Nor  here, 
can  the  non-com j)liance  of  Henry  Brenneman,  with  his  part  of 
the  contract,  remit  the  parties  to  their  original  rights,  for  by 
the  release,  the  recognisance  is  extinguished.  It  is  impossible 
to  avoid  seeing,  that  this  is  a  contest  among  creditors.  Henry 
Brenneman  is  dead,  and  I  presume  his  estate  insolvent ;  as, 
otherwise,  the  case  is  not  worth  pursuing,  for  the  assignees 
would  have  the  same  relief  in  a  suit  on  a  simple  contract  as  on 
the  recognisance  ;  for  the  debt  remains,  if  not  already  paid, 
although  the  recognisance  be  extinguished. 

In  connection  with  the  evidence  contained  in  the  first  bill  of 
exceptions,  the  plaintiffs  further  offered  to  prove,  that  the  re- 
lease given  in  evidence  by  the  defendants,  was  induce<l  by  the 
purcha.ser  of  Jacob's  share  refusing  to  pay  without  a  release 
being  executed  by  all  the  heirs;  and  that  they  agreed  to  meet 
the  wishes  of  the  purchaser,  by  executing  the  release,  upon  his 
T-^oi  n-\  paying  the  purchase-*money  of  the  share  he  had  bought : 
•-  -^  That  there  was  a  full  understanding  among  the  heirs, 
that  it  was  to  operate  in  favour  of  the  purchaser  only ;  and 
that,  as  among  themselves,  the  release,  though  in  form  absolute, 
was  to  be,  and  remain  inoperative,  until  the  persons  taking  the 
land,  paid  to  each  of  the  heirs  their  share  in  the  valuation 
money  :  That  under  this  understanding  and  agreement  between 
the  heirs,  the  release  was  executed,  u])on  the  payment  of  the 
money  by  Mr.  Schock  only  :  That  Henry  Brenneman  did  not 
pay  anything  to  any  of  the  heirs,  when  the  release  was  exe- 
cuted, but  that  payments  have  been  made  to  all  the  heirs  but 
Christian  Longenecher  and  wife,  to  whom  no  part  of  her  share 
has  been  paid. 

Whether  a  Court  of  Chancery  would  set  up  this  parol  agree- 
ment, so  as  to  consider  the  release  operative  against  Henry 
Brenneman  and  his  heirs,  it  is  not  necessary  to  decide.  It  is, 
however,  very  clear,  that  a  chancellor  would  not  interpose 
where  the  rights  of  third  persons  would  be  affected.  It  would 
be  a  sufficient  answer  to  a  bill  for  relief,  that  the  interest  of 
others  was  concerned,  whether  they  were  judgment  or  simple 
contract  creditors,  purchasers,  or  terre-tenants  of  the  land. 
354 


June  1,1829.]        OF   PENNSYLVANIA.  316 

[The  Commonwealth,  for  the  use  of  Mishey  and  others,  v.  Brenneman  and 
anotlier,  Administrators  of  Brenneman.] 

There  is  no  difficulty  in  perceiving  the  ol)ject  in  view,  in  the 
course  pur&ued  by  the  plainti'tis.  If  they  could  sustain  their 
suit  on  the  recognisance,  they  would  have  a  lien  on  the  fund 
substituted  for  the  land,  and  now  in  the  hands  of  the  adminis- 
trators, and  this  to  the  exclusion  of  the  other  creditors.  Equity 
does  not  favour  secret  agreements,  at  the  expense  of  those  who 
neither  know,  nor  have  an  opportunity  of  knowing  of  their 
existence ;  and  we  have  ever  been,  and  I  trust,  ever  will  be, 
extremely  cautious  in  giving  effect  to  secret  family  arrange- 
ments, except  as  against  the  p?irties  themselves,  or  those  who 
may  be  cognisant  of  the  nature  of  the  transaction. 

The  next  bill  of  exceptions  raises  the  question,  whether,  on  a 
general  offer  to  prove  misre{)resent«tion  and  fraud,  a  party  can 
be  compelled  to  specify  the  evidence  on  whicli  he  relies,  to  estab- 
lish fraud.  A  history  of  this  case  jn'esents  a  strong  argument 
in  favour  of  the  power  of  the  court;  and  indeed,  of  its  necessity, 
in  preventing  the  waste  of  time  in  hearing  testimony,  which,  if 
permitted  to  be  given,  can  have  no  effect,  but  in  perplexing  and 
bewildering  the  jury.  The  plaintiffs  had  made  two  specifications 
of  matters,  which  they  alleged,  supported  the  replication,  and 
these  were  adjudged,  and  rightly,  as  insufficient  for  that  pur- 
pose. They  then  make  an  offer,  in  as  general  terms  as  possible, 
by  which  they  seek  to  do  that  indirectly,  which  they  had  been 
prevented  from  doing  directly.  If  this  can  be  done,  the  decision 
of  the  court  may  at  any  time  be  avoided,  by  the  use  of  general 
terms,  which  give  in  truth  no  information  to  the  court,  and 
which  do  not  enable  them  to  judge  of  the  relevancy  of  the  testi- 
mony, which  is  their  exclusive  province.  Had  the  plaintiffs 
undertaken  to  set  out  the  evidence,  we  are  ^warranted  r^oi  7-1 
in  believing  it  would  have  contained  but  a  repetition  of  ■-  ^ 
what  had  already  been  passed  on  by  the  court,  and  adjudged  in- 
competent. It  would  be  but  a  mockery  of  the  authority  of  the 
court,  to  suffer  its  decisions  to  be  evaded  in  this  M^ay.  This 
attempt,  by  which  counsel  endeavour  to  take  from  the  court 
their  legitimate  authority,  and  go  to  the  jury  on  vague  aud 
indefinite  notions  of  the  justice  or  hardship  of  a  particular  case, 
has  been  ofleu  made,  and  as  often  resisted.  It  has  been  argued, 
that  witnesses  sometimes  refuse,  except  in  court,  to  disclose  the 
evidence  which  they  intend  to  give.  This  does  sometimes 
happen,  but  this  is  so  rare  an  occurrence,  as  not  to  deserve  the 
importance  which  has  Ijeen  attached  to  it  by  the  Counsel,  who 
concluded  the  argument  for  the  plaintiffs  in  error.  It  is,  how- 
ever, a  sufficient  answer  to  this  argument,  that  this  does  not 
appear  to  be  the  reason  the  ))laintiffs  refused  to  comply  with  the 
directions  of  the  court.     When  a  witness  refuses  to  disclose  his 

355 


317  SUPREME  COURT  [Lancaster, 

[The  Commonwealth,  for  the  use  of  Mishey  and  others,  v.  Brenneman  and 
another,  Administrators  of  Brenneman,] 

knowledge,  and  the  refusal  of  a  party  to  specify  the  evidence  on 
which  he  relies  proceeds  from  inability,  and  not  design,  he  will 
then  be  in  time  to  claim  the  benefit  of  ^n  exemption  from  the 
rule,  under  the  special  circumstances  of  his  case. 

Judgment  affirmed. 

Cited  by  Counsel,  4  R.  143 ;  3  W.  186;  2  Barr,  183. 
Cited  by  the  Court,  6  W.  121. 


[Lancastek,  June  1, 1829.] 
Cooke  against  Keinhart  and  Others. 

A  writ  of  error,  and  not  a  certiorari,  is  the  proper  remedy  for  tlie  correction 
of  errors  in  the  Court  of  Common  Pleas,  in  a  case  brought  into  that  court  on 
a  certiorari,  to  remove  the  proceedings  of  two  aldermen,  or  justices  of  the  peace, 
under  the  act  of  6th  of  April,  1802,  "to  enable  purchasers  at  sherifl's  or  cor- 
oner's sales  to  obtain  possession." 

But  after  the  lapse  of  two  terms,  it  is  too  late  to  move  to  quash  the  cer- 
tiorari. 

In  a  proceeding  under  the  act  of  6th  of  April,  1802,  to  obtain  possession  of 
land  purchased  at  sheriff's  sale,  if  the  inquest  find  that  A.  B.  was  the  de- 
fendant whose  land  was  sold ;  that  he  was  in  possession  at  the  time,  and  that 
the  purchaser  gave  notice  to  liim,  and  to  C.  D.  and  E.  F.,  his  tenants,  it  is  a 
sufficient  finding  of  the  possession  of  the  debtor,  and  that  those  who  are  said 
to  be  his  tenants,  came  into  possession  under  him. 

It  is  enough  if  the  inquest  find  that  the  purchaser  gave  due  and  legal  notice, 
without  expressly  finding  that  three  months'  notice  was  given  prior  to  the 
application  to  the  justices. 

Where  this  court  reversed  the  judgment  of  the  Court  of  Common  Pleas, 
who  had  reversed  the  proceedings  of  two  justices,  under  the  act  of  6th  of  April, 
1802,  and  awarded  restitution  of  the  land  to  the  defendants,  a  writ  of  re-resti- 
tution to  the  complainants  was  awarded. 

Certiorari  to  the  Court  of  Common  Pleas  of  Lancaster 
county. 

This  was  a  proceeding  under  the  act  of  6th  of  April,  1802, 
by  David  Cooke  against  George  Reinhart,  Henry  Cassel,  and 
Abraham  Cassel,  to  recover  possession  of  a  tract  of  land,  &c.,  in 
Donegal  township,  sold  by  the  sheriff  on  an  execution  against 
r*qi  o-|  Henry  Cassel.  *The  purchaser  was  John  Roberts,  who 
L  J  by  deed  bearing  date  25th  of  August,  1821,  conveyed 
the  premises  to  the  complainant,  which  was  addressed  to  John 
Passmore  and  Samuel  Dale,  Esqrs.,  aldermen,  in  and  for  the 
city  of  Lancaster,  after  setting  forth  the  sheriff's  sale,  <S:c.,  pro- 
ceeded, "  your  cotnplainant  being  desirous  of  obtaining  posses- 
sion of  the  said  premises,  for  that  purpose  did,  on  the  7th  day 
of  September,  1821,  demand  and  require  the  said  Henry  Cassel, 
356 


June  1,  1829.]        OF  PENNSYLVANIA.  318 

[Cooke  V.  Kelnhart  and  others.] 

as  whose  property  the  said  premises  were  sold,  Abraham  Cassel 
and  George  Reinhart,  to  remove  from  and  leave  the  same,  and 
they  have  hitherto  refused,  and  still  do  refuse  to  comply  there- 
with :  that  three  months  having  elapsed  since  the  service  of  said 
notice,  he  makes  this  his  complaint,  that  such  proceedings  may 
be  taken  by  you  as  are  directed  by  the  act  of  assembly  in  such 
case  made  and  provided." 

Upon  this  complaint,  the  aldermen  issued  their  precept  to  the 
sheriff,  by  whom  a  jury  was  summoned,  and  the  usual  proceed- 
ings took  place. 

The  inquisition  which  was  taken  by  the  aldermen  and  jury  on 
the  15th  of  December,  1821,  stated  that  "John  Roberts,  on  or 
about  the  16th  day  of  August,  1821,  at  the  county  aforesaid, 
purchased  at  sheriii''s  sale  a  certain  plantation  or  tract  of  land, 
containing  one  hundred  and  eighty  acres,  be  the  same  more  or 
less,  with  a  two-story  brick  dwelling-house,  a  stone  Swisser  barn, 
and  other  out-houses  thereon -erected,  situated  in  Donegal  town- 
ship, adjoining  lands  late  of  Henry  Share,  Henry  Haines,  and 
others,  which  said  property  was  sold  by  the  sheriff  at  the  time 
and  place  aforesaid,  as  the  property  of  Henry  Cassel,  as  fully 
appears  to  us  by  the  deed  poll  executed  by  John  Mathiot,  Esq., 
high  sheriff  of  the  said  county  to  the  said  John  Roberts,  and  to 
his  heirs  and  assigns,  for  the  said  premises,  bearing  date  the  24th 
day  of  August,  1821,  whicli  said  deed  was  duly  acknowledged 
in  tiie  Court  of  Common  Pleas  for  the  said  county,  on  the  25th 
day  of  August,  1821,  by  the  said  sheriff,  and  the  deed  and  ac- 
knowledgment duly  certified  under  the  seal  of  the  said  court : 
And  the  jurors  aforesaid  do  further  say,  that  the  said  John 
Roberts,  and  Mary,  his  wife,  on  the  25th  day  of  August,  in  the 
year  aforesaid,  by  their  deed,  under  their  hands  and  seals,  and 
duly  acknowledged,  assigned  the  said  premises  to  David  Cooke, 
his  heirs  and  assigns :  And  the  jurors  aforesaid  do  further  say, 
that  Henry  Cassel  is  the  defendant  as  whose  property  the  said 
lands  and  tenements  were  sold,  and  that  the  said  Henry  Cassel 
was  in  full  possession  of  the  same  when  the  sale  above-mentioned 
was  made,  when  the  sheriff's  deed  above-mentioned  was  executed, 
and  when  the  same  wa?  acknowledged  in  the  court  aforesaid : 
And  the  jurors  further  do  say,  that  the  said  David  Cooke  gave 
due  and  legal  notice  to  the  aforesaid  Henry  Cassel  then  in  pos- 
session of  the  premises,  George  Reinhart  and  Abraham  Cassel, 
tenants  of  the  said  Henry  Cassel,  that  the  said  premises  had 
been  sold  to  iiim,  and  required  them  by  the  said  notice,  in  writing, 
to  surrender  up  *the  possession  of  the  said  premises  to  r+qiq-i 
the  said  David  Cooke,  the  purchaser  thereof  as  afore-  ^  J 
said,  within  three  months  after  the  date  of  such  notice ;  and  that 
more  than  three  months  have  transpired  since  the  date  of  such 

357 


319  SUPREME  COURT  [Lancaster, 

[Cooke  V,  Reinhart  and  others.] 

notice,  and  that  the  said  Henry  Cassel,  George  Reinlmrt,  and 
Abraham  Cassel,  have  neglected  and  refused,  and  still  do  refuse 
to  comply  therewith,  by  surrendering  uj)  the  j)ossession  of  the 
said  premises  to  the  purchaser  aforesaid  ;  and  the  jurors  do 
assess  damages  against  the  said  Henry  Cassel,  George  Rein  hart, 
and  Abraham  Cassel,  for  the  unjust  detention  of  the  said  demised 
premises  at  one  hundred  and  three  dollars  seventy-five  cents, 
besides  all  costs  of  suit.  Whereupon  it  is  considered  by  the  said 
justices,  that  possession  of  the  said  j)remises  be  delivered  to  the 
said  David  Cooke,  and  that  he  recover  of  the  said  Henry  Cas- 
sel, George  Reinhart,  and  Abraham  Cassel,  his  damages  afore- 
said, together  with  his  costs  of  suit,  amounting  to,  &c." 

The  aldermen  having  made  a  record  of  the  finding,  and  en- 
tered judgment  in  favour  of  the  complainant  for  damages  and 
costs,  issued  their  warrant  to  the  sheriif,  by  virtue  of  which,  he 
delivered  possession  of  the  premises  to  David  Cooke,  the  com- 
plainant. 

A  certiorari,  issued  on  behalf  of  the  defendants,  from  the  Court 
of  Common  Pleas  of  Lancaster  county,  returnable  to  January 
Term,  1822,  under  which  the  aldermen  returned  their  proceed- 
ings to  that  court,  where  the  following  exceptions  were  filed' on 
the  13th  of  March,  1822: 

1st.  The  plaintiff  had  no  right  to  apply  to  the  magistrates,  to 
hold  these  proceedings,  until  the  proper  authority  had  set  aside 
or  confirmed  the  proceedings  had  by  Sanuiel  Carpenter,  Esq.,  and 
Daniel  Moore,  Esq.,  and  the  jury  summoned  before  them,  relative 
to  obtaining  possession  of  the  same  premises.  The  complain- 
ant had  appeared  before  them,  and  the  said  magistrates  and  jury 
had  acted  on  the  case ;  and  because  the  finding  of  the  jury  tmd 
magistrates  did  not  please  the  complainant,  he  discontinued  those 
proceedings  and  commenced  these  before  the  magistrates.* 

2d.  The  plaintiff  above  named  was  not  the  purchaser  at  sheriff's 
sale. 

3d.  The  jury  have  not  found  that  George  Reinhart  or  Abraham 
Cassel,  were  in  possession  of  the  premises ;  nor  did  they  come 
into  possession  under  the  defendant  as  whose  property  the  same 
was  sold,  nor  was  the  said  Abraham  Cassel  in  possession  of  the 
premises  at  all. 

4th.  The  finding  of  the  jury  is  not  according  to  the  act  of 
assembly — but  is  deficient,  and  no  judgment  could  be  rendered 
thereon. 

6th.  No  legal  notice  was  given  to  the  defendants  to  leave  the 
premises ;  nor  is  the  notice  stated  in  the  complaint  to  have  l)een 
given  conformably  to  the  act  of  assembly. 

*Tlie  record  contained  nothing  more  than  is  stated  in  the  exception,  in 
relation  to  the  proceedings  therein  referred  to. — Reporter. 

358 


June  1,  1829.]         OF   PENNSYLVANIA.  320 

[Cooke  V.  Eeinliart  and  others.] 

*6tli.  The  fiuding  of  the  jury  is  inconsistent  with  the  r^oon-i 
complaint  and  summons,  and  the  record  inconsistent  with  L  J 
all  of  them. 

7th.  The  summons  is  not  according  to  the  act  of  assembly. 

8th.  The  aldermen  had  no  jurisdiction  in  the  case. 

9tli.  The  defendants  were  not  summoned  to  appear  before  the 
said  aldermen  and  jury,  and,  in  consequence  thereof,  had  no  op- 
portunity of  making  defence. 

lOtli.  General  errors — that  the  complaint,  the  summons,  the 
inquisition  and  record  are  void,  as  not  conformable  to  the  express 
directions  of  the  act  of  assembly. 

The  Court  of  Common  Pleas  were  of  opinion,  that  the  first, 
third,  and  fifth  exceptions  were  fatal  to  the  proceedings,  which 
they  therefore  reversed,  and  awarded  a  writ  of  restitution.  The 
writ  was  in  the  following  form  : 

^^  Lancaster  County,  ss. 

"  The  Commomvealth  of  Pennsylvania  to  the  Sheriff  of 
Lancaster  County,  Creeting : 

ro         -|       "Whereas  by  our  writ  of  certiorari,  we  lately  com- 
L  '-I  manded  John  Passmore  and  Samuel  Dale,  Esqrs.,  two 

of  the  aldermen  for  the  city  of  Lancaster,  in  the  county  of 
Lancaster,  that  of  certain  proceedings  wherein  David  Cooke 
is  plaintiff,  and  George  Reinhart,  Henry  Cassel,  and  Abraham 
Cassel  are  defendants,  had  before  the  said  aldermen  under  the 
act  entitled  '  an  act  to  enable  purchasers  at  sheriffs'  and  coro- 
ners' sales  to  obtain  possession,'  they  should  have  before  our 
,  judges  at  Lancaster,  at  our  county  Court  of  Common  Pleas, 
there  to  be  held  on  the  third  Monday  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  twenty-one,  then  next, 
in  order  that  such  further  j)roeeedings  might  be  had  thereon, 
as  to  right  and  the  laws  of  this  commonwealth  ought.  And 
whereas  our  judges  aforesaid  have,  for  error  in  the  proceedings 
aforesaid,  reversed  the  same,  and  awarded  a  restitution  of  a 
certain  plantation  or  tract  of  land,  containing  one  hundred 
and  eighty  acres,  be  the  same  more  or  less,  with  a  two-story 
brick  dwelling-house,  a  stone  Swisser  barn,  and  other  out- 
houses thereon  erected,  situate  in  Donegal  township,  adjoining 
lands  of  Henry  Haines  and  others,  which,  by  virtue  of  the 
said  proceedings  you  lately  took  from  the  possession  of  the 
said  George  Reinhart,  Henry  Cassel,  and  Abraham  Cassel,  and 
delivered  over  to  the  said  David  Cooke,  and  the  costs  that 
accrued  on  the  said  proceedings,  amounting  to  seven  dollars 
and  fifty-three  cents,  being  unpaid ;  Therefore,  we  command 
you,    that   without   delay   you    restore   to    Henry    Cassel   and 

359 


320  SUPREME  COURT  [LanmMer, 

[(kK)ke  I'.  Reinhart  and  others.] 

Abraliam  Cassel  full  and  ample  possession  of  the  aforesaid 
tract  of  land,  with  the  appurtenances.  And  wp  also  command 
you,  that  of  the  goods  and  chattels,  lauds  and  tenements  of 
the  said  David  Cooke,  you  cause  to  be  made  and  levied  the 
sum  of  seven  dollars  and  fifty-three  cents,  which  to  the  said 
George  Reinhart,  Plenry  Cassel,  and  Abraham  Cassel,  in  our 
r+oon  same  court,  was  adjudged  for  *their  costs  and  charges 
•-  -•  which  they  had  been  put  to  in  and  about  the  pro- 
ceedings aforesaid.  And  have  you  that  money  before  our 
judges  at  Lancaster,  at  our  county  Court  of  Common  Pleas, 
there  to  be  held  on  the  third  Monday  in  January  next,  to 
render  to  the  said  George  Reinhart,  Henry  Caf^sel,  and  Abraham 
Cassel,  for  their  costs  and  charges  aforesaid.  And  have  you 
then  there  this  writ." 

To  May  Term,  1827,  the  record  was  returned  to  the  Supreme 
Court,  where  the  errors  assigned  in  the  proceedings  of  the  court 
below  were : 

1st.  The  court  erred  in  deciding  the  first,  third,  and  fifth  ex- 
ceptions to  be  fatal  to  the  proceedings  before  the  aldermen. 

2d.  The  court  erred  in  awarding  restitution  of  the  premises 
to  George  Reinhart,  Henry  Cassel,  and  Abraham  Cassel. 

3d.  The  writ  of  restitution  does  not  pursue  the  judgment  of 
the  court,  and  is  erroneous  in  other  respects. 

When  the  cause  was  called  up  for  argument.  Porter  for  the 
defendants,  moved  to  quash  the  writ,  on  the  ground,  that  a  writ 
of  error,  and  not  a  certiorari,  was  the  proper  remedy  in  a  case 
like  this. 

The  court  ordered  the  question  to  be  argued,  but  directed  the 
argument  upon  the  exceptions  to  proceed  in  the  mean  time. 

iVon'is,  for  the  plaintiif,  cited  Kirk  v.  Eaton,  10  Serg.  & 
Rawle,  108  ;  Fitzalden  v.  Lee,  2  Dall.  205 ;  3  Johns.  Rep.  424; 
13  Johns.  Rep.  210  ;  5  Johns.  Rep.  350  ;  10  Johns.  Rep.  24G ;  6 
Cowan,  556  ;  2  Salk.  493;  2  Caines'  Rep.  182;  4  Hawk.  144; 
Ruhlman  v.  The  Commonwealth,  5  Binn.  24;  4  Mass.  Rep.  239, 
376 ;  5  Mass.  Rep.  406 ;  Ship  Portland  v.  Lewis,  2  Serg.  & 
Rawle,  197  ;  The  Commonwealth  v.  The  Cheltenham  and  Willow 
Grove  Turnpike  Company,  2  Binn.  257  ;  2  Bac.  Ab.  473  ;  1 
Johns.  Ca.  169;  Heckert's  Appeal,  13  Serg.  &  Rawle,  104; 
Shank  v.  Warfel,  14  Serg.  &  Rawle,  205 ;  Mayes  v.  Jacoljy,  8 
Serg.  &  Rawle,  526. 

Porter  and   Hopkins,  contra,  cited   Clark  v.  Yeat,  4   Binn. 
18*5 ;  Clarke  v.  Patterson,  6  Binn.  128  ;  Boggs  v.  Black,  1  Binn. 
333 ;    Purd.  Dig.   760 ;    Schuylkill   Navigation   Company   v. 
360 


June  1,1829.]        OF  PENNSYLVANIA.  321 

[Cooke  V.  Keinhart  and  others,] 

Thoburn,  7  Serg.  &  Eawle,  418;    13  Johns.  Rep.   158;  T. 
Raym.  85. 

The  opinion  of  the  court  was  delivered  by 

Gibson,  C.  J. — Had  the  motion  to  quash  been  in  time,  it  must 
have  prevailed,  for  it  is  certain  that  a  writ  of  error  is  the  proper 
remedy  in  a  case  like  the  present.  To  quash,  however,  is  not 
of  right  but  by  favour  of  the  court ;  and  a  motion  to  that  effect 
comes  with  an  ill  grace  after  the  delay  of  two  terms.  Neither 
can  we  say  that  the  record  is  not  removed.  The  certiorari  is  a 
writ  of  error  in  respect  of  everything  but  form ;  and  as  the 
record  is  actually  certified,  there  is  enough  of  substance  in  the 
writ  to  enable  us  to  proceed.  We  are,  therefore,  to  determine 
the  cause  on  the  exceptions.  The  proceedings  were  quashed  by 
the  court  below ;  1.  Because  other  *proceediiigs  for  the  r*oo9-| 
same  cause  had  been  previously  prosecuted  to  judgment.  •-  J 
2.  Because,  as  it  is  said,  the  inquest  have  not  found  that  the 
defendants  were  in  possession,  nor  that  those  who  are  said  to 
be  tenants  of  the  debtor,  had  come  into  possession  under  him ; 
and,  3.  Because  legal  notice  of  the  sale  is  not,  it  is  said,  either 
found  by  the  inquest  or  averred  in  the  plaint. 

The  rule  that  no  intendment  shall  be  made  in  favour  of  pro- 
ceedings which  are  in  derogation  of  the  common  law  is,  by  our 
practice,  restrained  to  the  question  of  jurisdiction.  A  special 
and  limited  jurisdiction  is  in  so  many  cases  committed  to  subor- 
dinate magistrates,  who  are  either  ignorant  or  regardless  of 
forms,  that  an  application  of  the  rule  in  the  extent  in  which  it  is 
usually  predicated,  w^ould  be  intolerably  mischievous.  "  The 
settled  rule  of  this  court,"  says  Judge  Yeates,  "  has  been,  on 
removal  of  proceedings  of  justices  of  the  peace  in  cases  where 
their  jurisdiction  evidently  appears  on  the  record,  to  form  no 
presumption  against  the  accuracy  of  such  proceedings."  (Buck- 
myer  v  Dubs,  5  Binn.  32.)  Now,  as  it  is  expressly  found  that 
Henry  Cassel  was  the  defendant  whose  land  was  sold ;  that  he 
was  in  possession  at  the  time ;  and  that  the  purchaser  gave 
notice  to  him,  and  to  George  Reinhart  and  Abraham  Cassel,  his 
tenants,  it  would  require  considerable  astutia  to  discover  that 
the  tenants  were  not  in  possession  under  him.  So,  in  respect  of 
the  remaining  exceptions  :  The  inquest  having  found  that  the 
purchaser  gave  due  and  legal  notice,  nothing  less  than  a  pre- 
sumption unfavourable  to  the  accuracy  of  the  proceedings,  would 
enable  us  to  say  that  all  the  requisitions  of  the  law  have  not 
been  fulfilled.  It  is  true,  that  in  attempting  to  set  out  the  man- 
ner and  form  of  the  notice,  it  is  not  expressly  found  to  have  been 
given  three  months  previous  to  the  application  to  the  justices; 
but  neither  is  the  converse  found ;  and  as  the  inquest  could  not 

361 


322  SUPRP:ME  court  [Lancaster, 

[C-ooke  V.  Beinhart  and  others.] 

Imve  found  the  notice  to  l)o  due  and  legal,  if  not  given  in  due 
time,  the  in<juiwition,  although  not  so  formal  in  this  respect  as 
an  indictment,  is  well  enough.  The  objection  to  the  plaint  is 
not  founded  in  fact ;  and  the  other  exceptions  which  were  urged 
below,  are  without  the  semblance  of  substance.  It  is  said,  that 
re-restitution  being  of  grace,  no  reason  has  been  shown  why  we 
should  award  it  here.  But  without  it,  there  would  be  small  com- 
pensation in  reversing  the  judgment.  As  the  purchaser  was  de- 
prived of  the  just  fruits  of  his  execution,  we  are  bound  not  oidy 
to  correct  the  error,  but  to  redress  the  injury  which  was  the 
consequence  of  it ;  and  there  is  a  peculiar  Htness  in  this,  where 
the  proceeding  is  festinum  reniedium,  the  object  of  which  would 
otherwise  be  frustrated. 

Tod,  J.,  dissented  on  the  point  of  notice. 

Judgment    reversed ;    the   proceedings   of   the  justices 
affirmed,  and  re-restitution  awarded. 

Cited  by  Counsel,  7  W.  32 ;  9  W.  232 ;  9  W.  &  S.  152 ;  1  Barr,  130 ;  5  Barr, 
178  ;  7  Barr,  269  ;  7  Wr.  385 ;  25  S.  343 ;  4  O.  431. 
Cited  by  the  Court,  4  E.  369  •  13  Wr.  370 ;  1  N.  32;  s.  c.  3  W.  N.  C.  181. 


[*323]  *[Lancasteb,  June  1,  1829.] 

Kalbach,  for  the  use  of  Keber,  against  Fisher. 

IN   ERROR, 

No  writ  of  error  lies  to  the  opening  of  a  judgment  by  the  court  below.  It 
is  a  matter  depending  on  tlie  sound  discretion  of  that  court,  who  are  not  pre- 
vented by  lapse  of  time,  from  afibrding  relief. 

From  the  record  of  this  case,  returned  on  a  writ  of  error  to 
the  Court  of  Common  Pleas  of  Berks  county,  it  appeared,  that 
on  the  12th  of  April,  1820,  a  judgment  was  entered  in  that 
court  on  a  warrant  of  attorney  in  favour  of  John  Kalbach,  for 
the  use  of  Conrad  Reber,  against  Michael  Fisher,  for  one  thou- 
sand two  hundred  and  eighteen  dollars  and  thirty-two  cents. 
A  scire  facias  to  revive  the  judgment,  and  quare  execiifio  non 
having  issued,  judgment  was  entered  thereon,  by  consent,  on  the 
2d  of  November,  1825.  On  the  13th  of  August,  1 827,  a  rule  was 
granted  to  show  cause  why  the  original  judgment  and  the  judg- 
ment on  the  scire  facias  siiould  not  be  opened,  and  the  defendant 
let  into  a  defence;  and  on  the  20th  of  December,  1827,  the  rule 
was  made  absolute,  the  judgment  to  remain  as  a  security,  and 
the  proceedings  in  the  meantime  to  be  stayed.  The  cause  was 
tried  on  the  1 1th  of  August,  1828,  when  a  verdict  was  rendered 
for  tlie  defendant.  A  motion  for  a  new  trial  was  made  and 
362 


June  1,1829.]  OF   PENNSYLVANIA.  323 

[Kalbach,  for  the  use  of  Reber,  v.  Fisher.] 

overruled,  and  judgment  entered  on  tlie  verdict   for  the  de- 
fendant. 

It  was  alleged  in  this  court,  that  there  was  error  in  opening 
the  original  judgment  after  seven  years  had  elapsed  from  its 
entry,  after  a  scire  facias  had  issued  upon  it,  and  judgment  ren- 
dered on  the  scire  facias. 

Buchanan  and  Baird,  for  the  plaintiff  in  error,  insisted,  that 
the  discretion  of  the  Court  of  Common  Pleas,  in  relation  to 
opening  judgments,  was  not  without  limits  ;  and  that  by  analogy 
to  the  limitation  of  writs  of  error,  a  judgment  could  not  be 
opened  after  the  lapse  of  seven  years. 

Darling,  for  the  defendant  in  error,  answered,  that  it  was  a 
matter  of  mere  discretion,  on  which  a  writ  of  error  does  not 
lie,  and  cited  Kellogg  v.  Krauser,  14  Serg.  &  Rawle,  143. 

Rogers,  J.  (after  stating  the  case),  delivered  the  opinion  of 
the  court  as  follows  : — 

Tliere  are  many  cases  in  which  writs  of  error  do  not  lie,  from 
the  decision  of  Courts  of  Common  Pleas,  such  as  granting  or 
refusing  a  new  trial,  opening  or  refusing  to  open  a  judgment, 
and  motions  of  various  kinds,  in  which  parol  evidence  is  licard, 
without  ])lacing  it  on  the  record.  Ordroneaux  v.  Prady,  6  Serg. 
&,  Rawle,  512.  The  power  of  the  Court  of  Common  Pleas,  in 
relation  to  opening  judgnients,  is  most  ample,  and  policy  re- 
quires that  it  should  be  liberally  used,  otherwise  great  and  mani- 
fest injustice  would  be  *the  consequence,  from  the  great  r;i:o94-| 
variety  of  shapes  which  fraud  may  assume  in  the  com-  •-  ""  -• 
plicated  transactions  of  men.  It  depends  u])on  the  sound  dis- 
cretion of  the  court,  which  must  be  regulated  more  by  the 
particular  circumstances  of  every  case,  than  by  any  precise 
and  known  rule  of  law.  From  the  constitution  of  this  court,  it 
is  impossible  that  we  can  be  made  fully  acquainted  with  all  the 
circumstances,  and  there  would  be  more  danger  of  injury  from 
revising  matters  of  this  kind,  than  would  result  now  and  then 
from  an  improper  or  arbitrary  exercise  of  this  discretion.  It  is 
not  denied,  that  if  the  court  had  refused  to  open  the  judgment, 
the  defendant  would  have  been  without  remedy ;  and  yet  there 
is  less  danger  in  opening  than  in  refusing  to  open  a  judgment. 
In  the  one  case,  the  party  is  concluded,  and  in  the  other,  he  has 
an  opj)ortunity  of  a  fair  and  impartial  trial  before  a  jury,  who 
will  give  him  the  benefit,  under  the  direction  of  the  court, 
of  an  argument  to  be  derived  from  lapse  of  time,  and  a  conse- 
quent loss  of  vouchers,  or  other  testimony.  The  practice  of 
opening  judgments,  without  stint  or  limit,  except  the  sound  dis- 

363 


324  SUPREME  COURT  [Lancaster, 

[Kalbach,  for  the  me  of  Reber,  v.  Fisher.] 

cretion  of  the  court,  has  obtained  since  the  first  setttement  of 
the  province,  and  I  am  yet  to  learn,  it  lias  been  altered  with 
any  injustice  to  suitors.  On  the  contrary,  we  all  know,  it  has 
frequently  been  the  means  of  unravelling  the  most  secret  and 
unjust  sclienies  of  oppression  and  fraud,  which  could  not  have 
been  reached  without  a  free  and  liberal  exercise  of  this  extra- 
ordinary power  of  the  court.  This  complaint  comes  with  a  bad 
grace  from  the  defendant.  He  has  had  an  op])ortunity  of  try- 
ing his  cause  before  a  jury,  and  alleges  no  errors  in  the  trial, 
but  contents  himself  with  simply  contending,  tliat  by  lapse  of 
time,  the  defendant  is  prevented  from  investigating  the  merits 
of  his  case,  or  in  other  words,  that  an  unjust  demand  is  sanc- 
tioned by  time  alone.  Two  judgments  were  rendered,  and  the 
effect  this  ought  to  have,  would  be  to  make  the  Common  Pleas 
more  cautious  in  listening  to  the  complaint  of  the  defendant. 
It  is  by  no  means  uncommon  for  indorsers  to  take  an  absolute 
judgment  from  the  drawer  of  a  note  as  an  indemnity.  The 
evidences  of  the  real  nature  of  the  transaction  sometimes  rest 
in  the  memory  of  the  witnesses,  and  sometimes  are  reduced  to 
writing.  As  long  as  the  indorsements  continue,  which  is  some- 
times for  years,  it  is  necessary  to  revive  the  judgment  by  tniire 
facias,  which  of  course  would  be  done  by  consent.  In  such  a 
case  could  it  be  possible,  that  the  Court  of  Common  Pleas  could 
not  give  relief  against  an  unjust  attempt  to  enibrce  payment  of 
the  money  by  execution,  without  regard  to  the  time  the  judg- 
ment was  rendered,  or  to  the  number  of  renewals  by  scire 
facias  f  I  state  this  instance,  in  order  to  show  the  danger  of 
attempting  to  limit  the  time  of  affording  relief  by  application  to 
the  sound  discretion  of  the  court.  The  court  are  of  oi)inion, 
that  no  writ  of  error  lies  to  opening  of  the  judgment  by  the 
Common  Pleas,  and  that  the  judgment  be  affirmed. 

Judgment  affirmed. 

Cited  by  Counsel,  1  Penn.  R.  248;  3  R.  275;  7  W.  122,  140;  2  Barr,  418; 
3  Barr,  4G1 ;  2  J  252;  3  II.  408;  12  H.  494;  2  V>  right,  .-il ;  4  Wright,  373; 
1  S.  189;  2  S.  431 ;  4  S.  322;  7  S.  453;  11  S.  186;  VI  S.  501  ;  13  S.  448;  22 
S.  364;  25  S.  482;  27  S.  300;  29  S.  396;  30  S.  161;  9  N.  330;  13  N.  76;  1 
W.  N.  C.  208 ;  8  W.  N.  C.  212 ;  9  W.  N.  C.  45. 

Cited  by  the  Court,  10  H.  339 ;  1  S.  189. 


364 


Jiwi€  1, 1829.]        OF  PENNSYLVANIA.  326 


'  *[Lancaster,  June  1, 1829.]  [*325] 

Kickert  and  Another  against  Madeira. 

EJECTMENT. 

The  interest  of  a  mortgagee,  whether  the  mortgage  be  equitable  or  legal, 
cannot  be  taken  in  execution. 

On  the  trial  of  this  ejectment,  before  his  Honour  Judge  Smith, 
at  a  Circuit  Court  held  for  Schuylkill  county,  the  plaintiifs, 
Richard  Rickert  and  John  Reed,  after  having  shown  title  to  the 
premises  in  controversy  in  Jacob  Boyer  and  David  Shubert,  and 
a  deed,  bearing  date  the  3d  of  April,  1815,  from  Boyer  and 
Shubert  and  their  respective  wives,  conveying  the  premises  in 
fee  simple  to  John  Hughes,  for  the  consideration  of  seven  hun- 
dred and  seventy-five  pounds,  gave  in  evidence  the  following 
agreement : — 

"Agreement  made  this  27th  day  of  May,  in  the  year  of  our 
Lord,  1815,  between  Jeremiah  Reed  of  Manheim  township, 
Schuylkill  county,  of  the  one  part,  and  John  Hughes,  of  the 
township  of  Schuylkill,  county  aforesaid,  of  the  other  part,  wit- 
nesseth  that  the  said  Jeremiah  Reed  doth  agree,  and  by  these 
presents  has  agreed  with  the  said  John  Hughes,  to  go  his  bail 
in  a  certain  bond,  payable  to  Jacob  Boyer,  of  Montgomery 
county,  and  David  Shubert,  of  the  county  of  Lehigh,  in  the 
sum  of  eight  hundred  pounds,  payable  on  the  10th  day  of 
April,  A.  D.  1817;  together  with  three  years'  interest  on  the 
same  ;  upon  which  bond  the  said  John  Hughes  is  to  receive  a 
title  for  a  certain  tract  of  land,  situate  on  the  old  Sunbury  road 
— it  being  formerly  Melcher  Shubert's  plantation,  now  in  the 
possession  of  John  Deatrich,  on  the  following  conditions,  that 
is  to  say  :  That  the  said  John  Hughes  is  to  deliver  the  said  title 
into  the  possession  of  the  said  Jeremiah  Reed,  as  a  pledge  for 
his  services  for  going  the  said  bail,  and  nothing  else ;  the  said 
title  to  remain  in  the  hands  of  the  said  Jeremiah  Reed,  until 
the  said  bond  is  paid,  or  other  security,  for  the  payment  of  the 
same,  such  as  shall  be  deemed  sufficient  by  any  three  disinter- 
ested and  reasonable  freeholders,  and  no  longer :  and  it  is 
further  agreed,  that  if  the  said  Jeremiah  Reed  is  compelled  to 
pay  the  same  bond  when  due,  the  said  John  Hughes  is  to  pay 
the  damage  the  said  Reed  sustains  by  the  payment  thereof: 
and  it  is  further  agreed,  that  if  the  said  Reed  detains  the  said 
title  longer  than  the  said  Hughes  offers  to  comply  with  the  said 

365 


325  SUPREME   COURT  [Lancaster, 

[Rickert  and  another  v.  Madeira.] 

agreement,  then,  in  that  case,  the  said  Jeremiah  Reed  is  to  pay 
all  the  damage  the  said  Hughes  sustains  hy  the  said  detainer. 
In  witness,"  ^c. 

To  July  Term,  1817,  Jacob  Boyer  and  David  Shubcrt  brought 
suit  against  John  Hughes  and  Jeremiah  Reed,  upon  the  bond 
r*'^9r1  ii^cntioned  *in  the  article  of  agreement,  on  which  they 
L  "  -"  obtained  judgment.  Jeremiah  Reed  having  dietl,  a  ficire 
facias  issued  against  his  executors.  Judgment  was  rendered 
in  the  scire  facias ;  on  which  execution  issued,  and  a  levy  was 
made  on  the  land  in  dispute,  which  was  condemned.  To  a  plu- 
ries  venditioni  exponas,  the  sheriff  returned  that  it  remained  un- 
sold for  want  of  buyers.  A  judgment  was  likewise  obtained  by 
Richard  Rickert  against  Jeremiah  Reed  for  one  hundred  and 
twelve  dollars,  upon  which  sundry  executions  were  issued,  under 
which  the  land  now  in  dispute,  was  sold  by  the  sheriff  to  Richard 
Rickert  and  John  Reed,  the  present  plaintiffs,  for  four  hundred 
dollars,  who  received  the  sheriff's  deed  for  the  same.  The 
plaintiffs  also  proved,  that  the  debt,  interest,  and  costs,  due  in 
the  suit  brought  on  the  bond  for  eight  hundred  pounds,  given 
by  John  Hughes  and  Jeremiah  Reed  to  Jacob  Boyer  and  David 
Shubert,  mentioned  in  the  agreement,  had  been  satisfied  out  of 
the  estate  of  Jeremiah  Reed. 

The  defendant,  among  other  things,  proved,  that  there  was, 
on  the  8tli  of  February,  1829,  due  to  Elizabeth  Hughes,  the 
wife  of  the  said  John  Hughes,  from  Jeremiah  Reed,  as  executor 
of  the  will  of  the  said  Elizabeth's  father,  the  sum  of  four  hun- 
dred and  seventeen  pounds  three  shillings  and  four  pence,  with 
interest  from  the  1st  of  November,  1818. 

His  Honour  was  requested  by  the  defendant's  counsel  to 
charge  the  jury  upon  several  points  which  they  submitted  to 
him,  all  of  which  presented  the  same  question,  viz. :  Whether 
by  virtue  of  the  agreement  of  the  27th  of  March,  1815,  Jere- 
miah Reed  had  such  an  interest  in  the  land  in  dispute,  as  made 
it  liable  to  be  levied  on  and  sold  for  his  debts  ? 

The  opinion  of  the  judge  was  in  favour  of  the  plaintiffs,  for 
whom  the  jury  found  a  verdict,  with  this  condition,  "That  if  the 
defendant  shall  pay  to  the  executors  of  Jeremiah  Reed,  de- 
ceased, the  sum  of  fifteen  hundred  dollars,  on  or  l)efore  the  30th 
day  of  October,  1829,  and  pay  the  costs  of  this  suit,  the  verdict 
and  judgment  be  taken  oft',  and  judgment  to  be  entered  for  the 
defendant." 

A  motion,  made  by  the  defendant's  counsel,  for  a  new  trial, 
and  in  arrest  of  judgment,  having  been  overruled,  an  appeal  was 
entered. 

Biddle,  for  the  appellant,  contended,  that  tlie  agreement  of 
366 


Junel,182d.]        OF  PENNSYLVANIA.  326 

[Rickert  and  another  v.  Madeira.] 

March  27th,  1815,  constituted  an  equitable  mortgage,  and  tliat 
the  interest  of  a  mortiragee,  even  under  a  ley-al  morty-ajj-e,  cannot 
be  taken  in  execution.  A  mortgage,  tliough  in  form  a  convey- 
ance of  the  huid,  is  now  uniformly  considered  nothing  more  than 
a  security  for  a  debt ;  a  mere  chose  in  action,  which  goes  to  the 
executor.  Wentz  i\  J)e Haven,  1  Serg.  &  Rawle,  219;  McCall 
V.  Ivcnox,  9  Serg.  &  j{awle,  304  ;  Jackson  v.  Willard,  4  Johns. 
Rep.  41  ;  Runvan  r.  Mersereau,  11  Johns.  534;  16  jNIass.  Rep. 
345;  1  Pow.  on  Mort.  114;  Wharf  v.  Howell,  5  Binn.  502; 
Stoever  v.  Stoever,  9  Serg.  &  Rawle,  434. 

The  jury  had  no  right  to  prescribe  the  time  of  redemption. 

*Leoser,  contra,  argued,  that  the  obvious  intention  r^o.^--] 
of  the  agreement  was  to  pledge  the  land  itself  as  a  se-  L  '  -^  J 
curity,  and  not  merely  the  title  deeds,  and  that  every  interest 
in  land,  whether  leo-al  or  equitable,  was  subject  to  execution. 
He  cited  2  Cruise's  Dig.  92  ;  3  Pow.  on  Mort.  1050,  1051,  1055  ; 
Shauj)e  v.  Shaupe,  12  Serg.  &:  Rawle,  9;  Lessee  of  Humphreys 
V.  Humphreys,  1  Yeates,  427  ;  Carkhutf  v.  Anderson,  3  Binn. 
4;  Chahoou  v.  Hollenback,  16  Serg.  &  Rawle,  425;  Richter  v. 
Selin,  8  Serg.  &  Rawle,  425  ;  20  Johns.  51. 

The  opinion  of  the  court  was  delivered  by 

Rogers,  J. — This  is  an  apjieal  from  the  decision  of  Justice 
Smith,  in  the  Circuit  Court  held  for  the  county  of  Schuylkill. 
The  single  question  is,  whether  the  articile  of  agreement  l)e- 
tween  Jeremiah  R(,'ed  and  John  Hughes,  v^ested  such  an  interest 
in  the  land  claimed  by  the  plaintiffs,  as  to  make  it  liable  to  be 
levied  on  and  sold  by  the  sheritf  for  a  debt  due  by  Reed  or  his 
executors.  The  first  point  to  which  we  must  direct  our  atten- 
tion, is  the  nature  of  the  agreement;  for  it  is  contended,  that 
by  the  contract.  Reed  obtained  an  ecpiitiible  interest,  or  estate, 
in  the  land  itself.  Reed  agreed  to  go  bail  for  Hughes  in  a 
bond  to  Jacob  Boyer,  in  the  sum  of  eight  hundred  pounds.  As 
an  indemnity  to  Reed,  the  contract  was  made,  in  which  Hughes 
agrees  to  deliver  the  title  to  the  tract  in  dispute,  into  the  ])ossession 
of  Reed,  as  a  pledge  for  his  services  in  going  bail,  and  nothing 
else.  The  title  was  to  remain  in  the  hands  of  Reed  until  the 
bond  was  paid,  or  other  security  given.  The  agreement  further 
provides,  that  if  Reed  was  compelled  to  ])ay  the  bond  when  due, 
Hughes  was  to  pay  any  damage  he  might  sustain ;  and  that  if 
he  detained  the  title  longer  than  Hughes  offered  to  comply  with 
the  agreement,  then  Reed  was  to  pay  all  the  damage  that  Hughes 
might  sustain.  One  of  the  alternatives  ])rovided  for  has  liaji- 
pened,  for  Reed  has  been  compelled  to  ])ay  the  eight  hundred 
pounds  for  which  he  became  security,  and  without  question,  has 

367 


327  SUPREME  COURT  [Lancaster, 

[Rickert  and  another  v.  Madeira.] 

a  complete  right  of  action  against  his  principal.  This  is  not 
denied ;  but  it  is  contended,  that  they  have  mistaken  their 
remedy.  It  will  be  remarked,  the  title  only  is  deposited  in  the 
hands  of  Reed,  and  we  are  not  left  to  conjet^ture  for  Mhat  j)ur- 
pose,  for  the  parties  themselves  expressly  say,  as  a  pledge  and 
nothing  more,  for  his  services  in  going  bail.  The  possession  of 
the  land  remains  with  Hughes,  with  a  right  of  lien  in  Reed. 
Reed  does  not,  as  in  the  case  of  a  legal  mortgage,  obtain  the 
legal  title ;  but  the  title  papers  are  merely  deposited  with  him 
as  an  indemnity  for  any  eventual  loss  he  might  sustain,  by  rea- 
son of  his  responsibility  as  bail.  It  is  then  an  equitable  mort- 
gage, by  deposit  of  title  deeds,  which  may  be  created  by  parol, 
or  by  written  agreement,  as  here,  which  is  the  better  and  safer 
way,  showing  the  nature  and  intent  of  the  transaction.  This,  I 
believe,  is  no  uncommon  assurance  in  England,  growing  out  of 
the  equitable  jurisdiction  of  the  court,  and  relief  is  had  in 
r*'^9ST  chancery.  In  *one  respect  it  diifers  from  a  legal  mort- 
L  "J  gage,  where  the  remedy  is  by  foreclosure  and  transfer 
of  the  title  to  the  land  mortgaged.  In  an  equitable  mortgage, 
the  chancellor  decrees  a  sale  of  the  land  in  payment  of  the 
debt ;  for  it  is  but  the  security  for  the  debt,  and  does  not  vest 
any  interest,  or  estate,  in  the  land  itself.  He  cannot  by  any 
process  obtain  possession,  for  an  ejectment  will  not  lie  as  on  a 
legal  mortgage.  In  one  sense,  an  equitable  mortgagee  may  be 
said  to  have  an  interest  in  the  land ;  that  is,  he  has  a  lien  on 
the  land  as  a  fund,  for  the  payment  of  his  debt.  But  a  judgment 
creditor  has  precisely  the  same  interest.  The  question  then  re- 
curs, is  this  such  an  interest  as  is  the  subject  of  execution  ? 
There  would  not,  perhaps,  be  much  difficulty  in  distinguishing 
an  equitable  from  a  legal  mortgage,  as  the  legal  mortgage  is  the 
absolute  conveyance  of  the  land,  to  be  defeated  on  payment  of 
the  money  loaned  at  a  day  fixed  by  the  parties,  and  vesting  the 
legal  estate  in  a  mortgagee,  eo  instonti  the  deed  is  executed. 
Not  so  in  an  equitable  mortgage,  for  there  the  legal  estate  re- 
mains in  the  mortgagor ;  the  land,  whether  at  law  or  in  equity, 
being  but  a  pledge  for  the  debt.  As,  however,  doubts  have 
been  entertained,  Avhether  a  mortgage  be  liable  to  execution,  we 
would  wish  to  be  understood  as  deciding,  that  the  legal  and 
equitable  mortgage,  so  far  as  regards  this  question,  fall  within 
the  same  principle.  A  mortgage  must  be  considered  either  as  a 
chose  in  action,  or  as  giving  title  to  the  land,  and  vesting  a  real 
interest  in  the  mortgage.  In  the  latter  case,  it  would  be  liable 
to  execution ;  in  the  former,  it  would  not,  as  it  would  fall  within 
the  same  reason  as  a  judgment  bond,  or  simple  contract.  If  we 
should  consider  the  interest  of  the  mortgagee  as  a  real  interest, 
we  must  carry  the  principle  out,  and  subject  it  to  dower,  and  tc 
368 


Jane  1,  1829.]         OF  PEXXSYLVANIA.  328 

[Rickert  and  another  v.  Madeira.] 

the  lien  of  a  judgment ;  the  inconvenience  of  which,  would  have 
been  intolerable,  particularly  at  a  time,  when  by  law,  the  mort- 
gagee had  six  months  to  record  his  mortgage.  The  same  objec- 
tions which  may  be  urged  against  one  judgment,  being  a  lien  on 
another  judgment,  will  apply  with  equal  force  to  the  doctrine, 
that  a  judgment  is  a  lieu  on  a  mortgage.  That  a  mortgage  is 
but  a  chose  in  action,  a  mere  evidence  of  debt,  is  appareut  from 
the  whole  current  of  decisions.  A  devise  of  a  man's  personal 
estate,  carries  with  it  all  his  mortgages.  A  mortgage  may  be 
released  by  an  instrument  not  under  seal,  and  an  assignment  of 
the  bond,  which  usually  accompanies  the  mortgage,  transfers 
the  right  to  the  mortgage  itself;  for  whatever  will  give  the 
money  secured  by  the  mortgage,  will  carry  the  mortgaged 
premises  along  with  it.  The  forgiving  the  debt,  although  by 
parol,  will  draw  the  land  after  it  as  a  consequence.  The 
whole  result  of  the  case  is,  that  a  mortgage,  although  in 
form  a  conveyance  of  land,  is  in  substance  but  a  security 
for  the  payment  of  money ;  and  the  debt  being  paid,  or 
in  any  manner  extinguished,  the  mortgagee  becomes  a  trustee 
for  the  mortgagor.  In  consequence  of  the  want  of  a  Court  of 
Chancery,  our  law  differs  from  the  law  of  England  ;  for  in  Eng- 
land a  judgment  only  binds  a  legal  interest;  in  Pennsylvania,  a 
*legal  and  equitable  interest.  In  England,  the  re-  r*o9Q'i 
lief  is  in  chancery;  but  here,  we  enforce  payment  by  L  -I 
the  common  law  process  of  execution;  and,  hence,  under  the 
construction  of  the  act  of  1705,  for  taking  lands  in  execution 
for  payment  of  debts,  an  equitable  as  well  as  a  legal  title  to 
land,  has  been  considered  as  subject  to  the  lien  of  a  judgment. 
The  extent  of  the  decisions  in  Pennsylvania,  and  this  will  be 
found,  upon  a  critical  examination  of  all  the  cases,  is  to  subject 
to  execution  all  possible  contingent  titles  in  land,  accomjianied 
with  an  estate,  property,  or  real  interest  in  the  laud,  whether 
that  interest  be  legal  or  equitable.  And  for  the  soundness  of 
.this  position,  I  refer  generally,  to  the  Lessee  of  Humphreys  et 
al.  v.  Humphreys,  1  Yeates,  429 ;  Shau})e  v.  Shaupe,  1 2  Scrg. 
&  Rawle,  12,  and  to  Streaper  v.  Fisher  et  aL,  1  Ra^vle,  162. 
The  doubt,  whether  mortgages  are  the  subject  of  execution, 
does  not  seem  to  be  peculiar  to  Pennsylvania,  for  in  Blanchard 
V.  Colburn  and  wife,  16  Mass.  Rep.  346,  the  Supreme  Court  of 
Massachusetts  have  ruled,  "  That  lands  mortgaged,  cannot  be 
levied  upon  for  the  debt  of  the  mortgagee,  unless  he  shall  have 
first  entered  on  the  land."  And  in  Jackson  ex  dem.  Norton 
and  Burt  v.  Willard,  4  Johns.  41,  the  Supreme  Court  of  Xew 
York  have  gone  still  further,  and  have  decided,  ''  That  lands 
mortgaged  cannot  be  sold  on  execution  against  the  morty-aijee, 
before  a  foreclosure  of  the  equity  of  redemption,  though  the 
VOL.  I.— 24  369 


329  SUPREME  COURT  [Lanc^ter, 

[Rickert  and  another  v.  Mjideira.] 

debt  be  due,  and  the  estate  of  the  mortga<^ee  has  become  abso- 
lute at  law."  Without  undertaking  to  mark  the  extent  of  the 
doctrine  in  Pennsylvania,  I  agree  vvitii  Chief  Justice  Parsons, 
"That  the  difficulties  of  levying  upon  lands  mortgaged,  are  in- 
superable." The  debt  may  require  only  a  small  part  of  the 
land  to  satisfy  it,  and  several  executions  may  be  levied  by 
several  persons.  This  would  throw  difficulties  in  the  way  of  the 
mortgagee,  who  would  be  unable  to  determine  the  amount  of 
these  several  interests,  which  would  not  be  compensated  by  any 
advantages  which  would  attend  the  engrafting  this  new  prin- 
ciple into  the  law  of  Pennsylvania,  ])articularly  when  we  con- 
sider the  nice  and  intricate  questions  which  would  necessarily 
grow  out  of  it.  These  difficulties  have  produced  the  almost  uni- 
versal opinion  among  the  profession,  that  lands  so  situated,  are  not 
subject  to  the  debts  of  the  mortgagee  by  execution ;  and,  it  is 
an  argument  of  no  inconsiderable  weight,  that  although  mort- 
gages are  securities  of  such  common  occurrence,  this  is  the  first 
attempt  which  has  been  made  to  subject  the  interest  of  a  mort- 
gagee under  a  levy  and  execution. 

The  court  are  of  the  oj)inion,  in  which  Judge  Smith  concurs, 
that  the  judgment  be  reversed,  and  a  venire  facias  de  novo 
awarded. 

Judgment  reversed,  and  a  venire  facias  de  novo  awarded. 

Cited  by  Counsel,  3  Penn.  R.  162;   2'wh.  146;   3Wh.  463;   4Wh.  415; 

6  Wh.  214;   6  W.  130;  9  W.  2.%;  10  AW  15;  4  W.  &  S.  93;  6  W.  &  S.  510; 

7  W.  &  S.  29o;  1  Barr,  493;  2  Barr,  337;  3  Barr,  461 ;  4  Barr,  124;  6  Barr, 
229;  7  Barr,  169;  2  J.  345;  7  C.  418 ;  6  Wright,  343;  8  Wright,  520 ;  2  S. 
360 ;  2  G.  132 ;  14  N.  148  ;  s.  c.  9  W.  N.  C.  229. 

Cited  by  the  Court,  1  R.  355 ;  3  R.  129 ;  4  R.  255 ;  3  Penn.  R.  245 ;  5  Barr, 
35;  1  H.  568;  4  H.  150;  2 'Par.  163;  10  H.  363;  9  Wr.  463;  2  S.  138;  18  S. 
225;  18  8.  322;  14  N.  150;  s.  c.  9  W.  N.  C.  230 


[*330]  ^[Lancaster,  Jitke  1,  1829.] 

The  President,  Managers,  and  Company  of  the  Middle- 
town  and  Harrisburg  Turnpike  Road  against  Watson, 
Administratrix  of  Watson. 

IN   ERROR. 

An  agent  of  a  corporation,  who  has  received  money  for  its  use,  cannot,  in 
■an  action  for  money  had  and  received,  brouglit  against  him  by  tlie  corpora- 
tion, prove,  by  way  of  set-off,  that  he  has  paid  the  debts  of  the  cor})oration, 
without  showing  a  .special  antliority  for  that  purpose.  And  it  is  not  enough 
to  prove,  tliat  the  defendant  acted"  for  the  trea.surer,  witliont  showing  some 
resolution  of  the  board,  giving  the  treasurer  a  right  to  delegate  his  power  to 
the  defendant. 

370 


Jwrw  1, 1829.]        OF   PENNSYLVANIA.  330 

[The  President,  Managers,  and  Company  of  the  Middletown  Turnpike  Boad 
V.  Watson,  Administratrix  of  Watson.] 

This  case  came  before  the  court  on  a  writ  of  error  to  the 
Common  Pleas  of  Dauphin  county,  in  which  the  plaintiffs  in 
error  were  plaintiffs. 

The  cause  was  argued  in  this  court  by  BPClure,  for  the  plain- 
tiffs in  error,  and  Doiiglass,  for  the  defendants  in  error ;  after 
which  the  opinion  of  the  court  was  delivered  by 

Rogers,  J. — This  is  a  clear  case.  The  plaintiffs  bring  suit 
to  recover  from  the  administratrix  of  the  defendant_certain 
moneys,  received  by  the  intestate  as  a  manager  and  agent  of  the 
company,  from  delinquent  subscribers.  The  defence  is,  that  the 
money  so  received,  was  expended  by  the  agent  in  the  purchase 
of  the  debts  of  the  company,  and  this  the  administratrix  con- 
tends, is  a  legal  set-off  against  the  demand  of  the  plaintiffs. 
The  relation  of  principal  and  agent  is  well  settled  :  as  long  as 
the  agent  acts  within  the  scope  of  his  authority,  and  no  longer, 
he  is  protected.  It  was  the  duty  of  Watson  to  collect  and  pay 
over  the  funds  as  they  came  to  his  hands.  It  was  for  the  com- 
pany to  direct  the  application  of  the  money,  when  in  the  trea- 
sury, or  under  their  control,  to  the  discharge  of  their  debts,  the 
repair  of  the  road,  or  whatever  purposes  they  might  suppose 
most  beneficial  to  the  corporation.  This  they  have  been  pre- 
vented from  doing,  by  an  assumption  of  power  by  their  agent, 
and  a  misapplication  of  the  funds  of  the  company.  If  such  a 
breach  of  trust  should  be  permitted,  it  would,  in  practice,  lead 
to  great  abuses,  by  introducing  a  scene  of  speculation  and  fraud 
the  most  disastrous,  and  of  the  most  secret  and  dangerous 
nature.  A  principal  may  give  a  special  authority  to  his  agent 
to  settle  and  liquidate  his  debts,  and  this  is  frequently  done ; 
but  previous  to  the  introduction  of  such  a  defence,  to  a  suit 
brought  for  money  had  and  received,  as  agent,  the  special  au- 
thority should  be  shown.  It  is  said,  the  defendant  proved  by 
James  Montgomery,  that  Watson  acted  for  the  treasurer ;  but 
they  should  also  have  shown  some  resolution  of  the  board,  giv- 
ing the  treasurer  a  right  to  delegate  this  power  to  the  defendant. 
The  testimony,  to  say  the  least  of  it,  is  most  loose  *and  r*oo-i-i 
unsatisfactory,  for  I  cannot  believe,  the  treasurer  in-  L  -• 
tended  to  give  Watson  a  general  authority  to  discharge  the 
debts  of  the  company ;  nor  was  there  any  proof,  that  he  gave 
him  directions  to  pay  the  accepted  order  in  favour  of  James  H. 
Espy.  The  general  expressions,  "  That  Watson  acted  for  the 
treasurer,"  were  not  a  sufficient  foundation  for  the  introduction 
of  the  testimony ;  for  no  person  could  authorize  him  to  pay  the 
debts,  except  the  company,  and  no  resolution  has  been  shown, 
which  confers  this  right.     The  plaintiffs  offered  to  settle  the 

371 


331  SUPREME  COURT  [Lancaster, 

[The  President,  Managers,  and  Company  of  tlie  Middletown  Turnpike  Bead 
V.  Watson,  Administratrix  of  Watson.] 

case  upon  equitable  principles,  and  allow  what  was  actually  paid 
by  Watson;  an  offer,  which  to  ray  surprise,  was  declined.  It 
is  the  opinion  of  the  court,  the  testimony  was  improperly  re- 
ceived ;  that  the  judgment  be  reversed,  and  a  venire  facias  de 
novo  be  awarded. 

Judgment  reversed,  and  a  venire  facias  de  novo  awarded. 

Cited  by  Counsel,  4  Barr,  327 ;  2  G.  483;  15  S.  13,  14;  2  N.  366 :  s.  c.  4  W. 
N.  C.  282 ;  3  O.  378 ;  8.  c.  11  W.  N.  C.  228 ;  10  W.  N.  C.  424. 

Cited  by  the  Court,  9  Barr,  483;  10  H.  324;  3  O.  380;  s.  c.  11  W.  N.  C. 
229. 


[Lancaster,  June  1, 1829.] 

Unger  against  Wiggins. 

IN   ERROR. 

Where  it  did  not  appear  how  long  the  defendant  in  an  ejectment  had  been 
in  possession  of  the  land  in  dispute,  a  lessee  of  the  plaintiffj  under  an  old  lease, 
who  had  probably  been  out  of  possession  twenty  years  or  more,  and  against 
whom  no  suit  had  been  brought,  was  held,  in  the  absence  of  further  evidence 
to  presume  liability  for  mesne  profits,  not  to  be  incompetent  as  a  witness  for 
the  plaintiff,  on  the  ground  of  interest. 

Though  the  acts  of  a  deputy  surveyor,  done  for  the  benefit  of  A.,  cannot  be 
given  in  evidence  by  him,  in  support  of  his  own  claim,  without  producing  the 
authority  under  which  the  deputy  acted,  yet  the  imauthorized  act  of  the  deputy, 
done,  or  attempted  by  the  procurement  of  A.  may  be  given  in  evidence  by  B. 
to  show  the  invalidity  of  A.s  title. 

•Where  a  book,  purporting  to  be  a  book  of  a  deputy  surveyor,  containing 
his  tield  notes  of  a  resurvey,  had  been  frequently  in  evidence  before  the 
court,  and  three  times  in  the  very  cause  under  trial,  without  any  question, 
and  no  proof  of  handwriting  was  called  for,  but  it  was  objected  to  on  other 
grounds,  held,  that  it  was  not  error  to  permit  it  to  be  read  to  the  jury, 
without  proof  that  it  was  the  book  of  the  deputy  surveyor  or  of  his  hand- 
writing. 

Writ  of  error  to  the  District  Court  of  Dauphin  county. 

Ejectment,  in  which  the  plaintiff  in  error  was  defendant 
below,  having  been  substituted  as  devisee  in  place  of  George 
Unger,  deceased,  the  original  defendant. 

The  cause  came  up  on  three  bills  of  exception  to  evidence. 

1st.  Wiggins,  the  plaintiff  below,  offered  in  evidence  {inter 
alia),  a  lease  of  the  land  in  dispute,  granted  by  himself  to  one 
Jacob  Shrike,  dated  the  1st  of  March,  1797.  After  proving, 
that  William  Simonton,  the  only  subscribing  witness  to  the  lease, 
was  dead,  he  produced  Shrike,  the  lessee,  to  swear  that  he  saw 
r^ooo-i  Simonton  *subscribe  his  name  to  the  paper  as  a  witness 
*-  -"to  its  execution.  This  was  opposed  as  not  being  the 
372 


June  1,1829.]        OF  PENNSYLVANIA.  332 

[Unger  v.  Wiggins,] 

best  evidence.  Shrike  himself,  was  also  objected  to  as  a  witness, 
on  the  ground  of  incompetency  from  interest,  having  occupic(l 
the  land  some  time  under  Wiggins,  and  therefore  liable  to  an 
action  by  Unger  for  the  mesne  profits.  The  evidence  Avas  ad- 
mitted, and  a  bill  of  exceptions  sealed.  The  second  exception 
was  to  the  deposition  of  Thomas  Smith,  with  a  diagram  and 
drafts  annexed,  which  need  not  be  further  stated,  as  it  was  not 
relied  upon  by  the  counsel  for  the  plaintiff  in  error. 

3.  The  plaintiff  below,  further  to  maintain  the  issue  on  his 
part,  offered  to  read  in  evidence,  from  a  book  of  Bartram  Gal- 
braith,  page  716,  notes,  purporting  to  be  the  field  notes  of  the 
said  Bartram  Galbraith,  of  a  resurvcy  made  for  George  Uuger 
the  19th  of  December,  1792;  to  which  offer  the  defendant  ob- 
jected ;  but  the  court,  on  argument,  overruled  the  said  objection, 
and  directed  the  said  notes,  without  furtiier  proof,  to  be  read  to 
the  jury.  The  third  exception  was  thereupon  taken.  Galbraith 
was  dead  at  the  time  of  the  trial. 

Elder,  for  the  plaintiff  in  error. — Shrike,  the  witness,  was 
liable  to  an  action  for  mesne  profits,  unless  the  plaintiff  below 
recovered  the  land.  He  was  called,  therefore,  to  testify  for  him- 
self. As  to  the  book  said  to  be  Bartram  Galbraitli's,  it  was 
admitted  in  evidence  expressly  Avithout  further  proof;  that  is, 
without  proof  of  any  authority  to  make  the  resurvey  ;  without 
proof  of  any  request,  procurement,  or  knowledge  of  Unger,  and 
without  the  least  pretence  of  proof  to  the  jury  that  tlie  book 
itself  was  Galbraitli's,  or  even  of  the  handwriting.  As  to  au- 
thority, none  could  possibly  exist  for  the  resurvey.  It  was  of  a 
tract  already  patented.  Had  the  plaintiff  below  proved  any 
agency  or  consent  in  the  defendant,  or  those  he  claims  under,  it 
might  have  been  evidence  against  him,  though  an  unwarranted 
act.  No  proof  of  the  kind  was  attemj)ted ;  yet  it  was  easily  to 
be  procured  if  the  fact  had  been  so.  Why  were  not  the  chain 
carriers  produced,  or  some  one  who  was  present,  or  at  least  the 
lines  on  the  ground  proved?  The  defendant  is  not  to  be  held 
bound  by  the  unauthorized  act  of  a  deputy  surveyor;  far  less  is 
he  to  be  bound  by  the  mere  private  declarations  of  a  surveyor, 
without  evidence,  exce])t  from  tliose  declarations  that  the  act 
itself  has  ever  been  performed.  The  declarations  of  the  de))uty 
surveyor  are  not  evidence,  though  he  dies  before  trial,  and  all 
his  papers  are  burnt.  Bonnet  r'.  Devebaugh,  3  Binn.  175.  A 
survey  is  not  to  be  admitted  without  ])roducing  tiie  authority  for 
it.  AVilson  v.  Stoner,  9  Serg.  &  Rawie,  39.  Even  sn])]i()sing 
the  b6ok  to  have  been  brought  from  the  survevor's  ofiice,  vet 
every  document  from  the  ofHice  is  not  therefore  oflicial.  Vincent 
V.  Lessee  of  Huff,  4  Serg.  &  lla\yle,  299,  relied  on  airainst  us, 

373 


332  SUPREME  COURT  [Lancaster, 

[Unger  v.  Wiggins.] 

is  the  very  doctrine  we  contend  for.  Jt  i)roves  that  not  the 
declarations  only  of  the  deputy  surveyor,  but  even  his  acts,  if 
P^rv„.^-|  without  authority,  are  evidence  *against  no  one.  Here, 
L  J  if  the  book  had  been  otherwise  admissible,  there  was  no 
semblance  of  authentication. 

Douglas  and  G.  Fisher,  for  the  defendant  in  error. — It  is 
very  true,  there  was  no  direct  formal  evidence,  that  the  book 
offered,  was  what  it  purported  to  be,  and  was  from  the  deputy 
surveyor's  office,  nor  that  the  handwritiuj^  was  Mr.  Galbraith's; 
for,  indeed,  the  book  and  the  handwriting  were  both  as  well 
known  in  our  court-house,  as  the  face  of  the  gentleman  himself 
while  living.  The  necessity  of  swearing  witnesses  to  the  iden- 
tity of  the  one  or  the  other,  would  hardly  occur  to  the  mind ; 
and  this  cause  having  been  already  tried  three  or  four  times,  and 
the  same  book  read  on  every  trial,  we  may  be  excused  for  not 
offering  on  oath,  solemn  proof,  which  nobody  asked  for,  of  facts 
which  nobody  doubted.  It  is  impossible  to  imagine,  that  the 
resurvey  for  Unger's  benefit,  was  not  ])rocured  and  paid  for  by 
him.  The  plaintiff  might  very  safely  be  challenged  to  produce 
the  chain  carriers  after  the  lapse  of  more  than  thirty  years,  and 
when  the  transaction  of  the  time  must,  from  the  nature  of  it, 
have  been  unknown  to  him.  So  far  from  denying  that  there  was 
no  pretence  of  authority  from  Unger's  resurvey,  it  is  what  we 
chiefly  insist  upon.  We  offered  the  evidence  for  the  sole  pur- 
pose of  showing,  that  this  bare  act  of  injustice  was  the  only 
shadow  of  title  at  that  time  against  our  client.  They  cited  Mil- 
ler V.  Carothers,  6  Serg.  &  Rawle,  215;  Vincent  v.  Lessee  of 
Huff,  4  Serg.  &  Rawle,  299 ;  Farmers'  Bank  of  Lancaster  v. 
Whitehill,  16  Serg.  &  Rawle,  90. 

The  opinion  of  the  court  was  delivered  by 

Tod,  J. — The  subscribing  witness  being  dead,  proof  of  his 
handwriting  apj)ears  to  have  been  well  enough  made  out  by  one 
who  saw  liim  put  his  name  to  the  very  paper.  I  think  no  inter- 
est was  shown  to  exclude  Shrike  as  a  witness.  His  lease  was  in 
1797.  How  long  Unger,  the  defendant  below,  against  whom  the 
witness  was  called,  had  been  in  possession  of  the  contested  spot, 
did  not  appear.  But  as  no  suit  had  been  brought  against  Shrike 
for  such  a  great  length  of  time,  and  he  had  been  out  of  posses- 
sion probably  twenty  years  or  more,  it  would  have  been  wrong, 
without  further  evidence,  to  presume,  that  any  liability  for  mesne 
profits  still  existed  against  the  witness.  As  to  the  admission  of 
the  book,  purporting  to  be  Bartram  Galbraith's,  and  the  field 
notes  of  the  resurvey  of  the  19th  of  December,  1792,  it  had 
been  shown  already  in  the  cause,  that  Unger,  the  defendant 
374 


Jum  1,1829.']         OF   PENNSYLVANIA.  333 

[Unger  v.  Wiggins.] 

below,  held  one  hundred  and  eiglity  acres  on  a  warrant  and 
patent,  in  the  name  of  Jacob  Garver,  granted  prior  to  the  revo- 
lution ;  the  piece  of  laud  in  dispute  being  about  twenty-two 
acres,  adjoining  the  said  one  hundred  and  eighty  acres  tract  of 
Unger.  Wiggins,  the  plaintiff  below,  claimed  the  twenty-two 
acres  under  a  warrant  for  one  hundred  acres,  dated  the  same 
19th  of  December,  1792,  granted  to  George  Runion,  and  call- 
ing for  Jacob  Garver's  survey  as  one  of  its  boundaries ;  that  is 
*to  say,  covering  the  ground  in  question  in  this  cause.  r;(:oo4.i 
On  tliis  warrant  for  one  hundred  acres,  Mr.  Galbraith  L  J 
was  the  surveyor  who  made  the  survey  for  Wiggins ;  and  in 
making  it,  instead  of  adjoining  the  line  of  Unger,  it  appears 
that  he  left  out  the  twenty-two  acres,  now  in  dispute,  next  to 
Unger's  tract.  Wiggins  o-oraplained  of  this  as  injurious  to  him, 
and  as  excluding  some  of  the  best  of  the  land.  Therefore,  he, 
Wiggins,  petitioned  the  Board  of  Property,  and  obtained  an 
order  for  a  resurvey.  And  on  the  21st  of  May,  1806,  a  resur- 
vey  was  made  for  him  by  Levy  G.  Hollingsworth,  deputy  sur- 
veyor, of  one  hundred  and  a  half  acres,  inckiding  the  land  in 
dispute,  according  to  the  call  of  the  warrant,  and  throwing  off  a 
part  of  the  former  survey  next  the  mountain.  But  before  this 
resurvey  by  Hollingswortii  for  Wiggins,  viz.,  on  the  6th  of  Janu- 
ary, 1802,  Unger  had  obtained  a  warrant  for  thirty  acres,  and 
on  the  17th  of  the  same  month,  a  survey  on  it,  including  the 
twenty-two  acres  in  question.  There  were  other  matters  of  fact 
contested  in  the  cause  not  material  to  be  stated.  Galbraith's 
book  and  notes  of  the  resurvey  were  objected  to  on  behalf  of 
Unger,  because  the  resurvey  being  wholly  without  authority, 
could  not  be  legal  evidence ;  and,  because  there  was  no  proof  of 
the  resurvey  having  been  attempted  at  the  request,  or  with  the 
knowledge  of  Unger,  the  defendant,  or  of  any  one  under  whom 
he  claimed.  These  objections  were  overruled  by  the  court  below, 
very  rightly,  in  my  opinion.  Because,  by  the  rule  of  law,  the 
act  of  a  deputy  surveyor,  done  for  the  benefit  of  A.,  sliall  not 
be  given  in  evidence  by  A.  to  support  his  own  claim,  without 
producing  the  authority  under  which  the  deputy  acted,  it  by  no 
means  follows,  that  the  unauthorized  act  of  the  deputy,  done,  or 
attempted  by  the  procurement  of  A.,  shall  not  be  given  in  evi- 
dence by  B.  to  expose  the  invalidity  of  A.'s  title.  Here,  the 
total  absence  of  all  pretence  of  right  to  extend  the  lines  of 
Unger's  patented  tract,  so  as  to  include  the  twenty-two  acres, 
was  the  very  matter  which  made  the  evidence  material  to  the 
plaintiff  below.  It  was  strong  proof,  that  Unger,  on  the  day  of 
the  date  of  the  plaintiff's  warrant,  had  no  legal  or  equitable  title 
to  the  land.  Equally  strong  was  it  to  support  the  allegation  of 
Wiggins,  that  the  first  survey  on  his  warrant,  by  Mr.  Galbraith, 

375 


334  SUPREME  COURT  [LancaMer, 

[Unger  v.  Wiggins.] 

had  been  returned  injuriously,  by  throwing  out  tlie  land  in  ques- 
tion ;  and  strong,  also,  to  show  for  what  purpose,  and  in  whose 
favour  the  thing  was  so  done.  But,  it  is  said,  the  unlawful  act 
of  the  deputy  shall  not  be  thus  visited  upon  Unger,  without  some 
evidence  to  show  Unger's  procurement,  or  in  some  respect,  to 
implicate  him  in  the  matter.  Most  clearly  the  law  is  so.  But 
etpially  clear  it  is,  in  my  opinion,  that  the  able  judge  (the  Hon. 
Charles  Smith,)  who  tried  this  cause,  peculiarly  versant  in  these 
questions  of  original  title,  and  whom,  as  he  is  no  longer  on  the 
bench,  I  may  be  permitted  to  mention  in  this  way,  so  directed 
the  jury.  We  have  not  the  charge  before  us,  nor  was  it  ex- 
cepted to  by  either  party.  Unger's  concurrence  in  the  resurvey, 
was  a  matter  of  fact.  Though  it  was  a  fact  to  be  proved,  yet 
P^ooK"!  it  was  *not  required  to  be  proved  by  an  eye-witness. 
L  J  Unless  contradicted,  or  explained,  the  evidence  to  im- 
plicate Unger,  would  seem  to  me  almost  conclusive.  The  illegal 
resurvey  was  all  for  Unger's  advantage,  or  supposed  advantage, 
and  in  no  way  for  the  advantage  of  Galbraith,  or  of  any  other 
person.  Unger  claimed  the  ground  thus  taken  in  by  the  resur- 
vey, and  his  devisee  yet  claims  it.  He  owned  the  tract  thus 
attempted  to  be  enlarged ;  and  on  the  first  survey  on  Wiggins' 
warrant,  made  on  the  13th  of  August,  1795,  Mr.  Galbraith  notes 
on  the  margin  of  the  draft,  the  land  in  dispute  as  the  property 
of  Unger. 

It  is  said,  there  was  no  proof  that  the  book  had  been  Mr. 
Galbraith's,  or  of  the  handwriting;  and  so  it  does  appear  from 
the  record.  But  it  is  not  denied  that  the  book  had  been  before 
in  evidence  innumerable  times  in  the  courts  of  Dauphin  county, 
and  three  times  in  this  same  cause,  without  any  question ;  and, 
that  there  was  no  call  for  proof  of  handwriting.  This  part  of 
the  case  would,  therefore,  seem  to  fall  under  the  rule  applicable 
to  matters  of  practice,  that  sometimes,  what  is  expressly  denied 
is  admitted ;  and,  that  to  specify  some  objections  to  evidence, 
waives  all  objections  not  mentioned. 

Judgment  affirmed. 

ated  by  Counsel,  8  S.  284. 


376 


June l,lS2d.]         OF   PENNSYLVANIA.  335 


[Lancaster,  June  1,  1829.] 

Rahm,  Executor  of  Kapp,  against  The  Philadelphia 

Bank. 

IN   ERROR. 

When  a  promissory  note  is  payable  at  a  particular  place,  such  as  a  bank, 
and  on  a  particular  day,  and  tlie  indorsee  is  at  bank  until  it  closes,  at  the  usual 
hour,  on  tlie  day  on  which  the  note  falls  due,  ready  to  receive  payment,  no 
further  demand  on  the  drawer  is  necessary,  in  order  to  charge  the  indorser. 

Verbal  notice,  to  the  indorser,  of  non-payment  by  the  drawer  is  sufHcient. 

The  act  of  assembly  incor[)oratin,«'  the  Philadel})hia  Bank,  by  tlie  terras  of 
which,  notes  discounted  by  that  bank,  are  placed  on  the  same  footing  as  for- 
eign bills  of  exchange,  does  not  render  a  protest  and  notice  thereof  to  the  in- 
dorser necessary,  in  order  to  charge  him. 

Writ  of  error  to  the  Court  of  Common  Pleas  of  Dauphin 
county. 

The  Philadelphia  Bank  was  plaintiif  below,  and  sued  on 
the  following  note,  indorsed  by  Kapp,  and  discounted  by  the 
bank  : 

"  Harrisburg,  December  12th,  1814. — Sixty  days  after  date, 
I  promise  to  pay  to  Michael  Kapp,  or  order,  at  the  Office  of 
Discount  and  Deposit,  Harrisburg,  without  defalcation,  fifteen 
hundred  dollars,  for  value  received. 

"Samuel  Laird." 

*It  was  in  evidence,  that  Fahnestock,  the  president,  on  (-aoo/^-i 
the  day  of  payment,  the  13th  of  February,  1815,  after  "-  '  J 
the  board  of  directors  had  broken  up,  seeing  Kapp,  told  him  the 
note  was  not  renewed  ;  tliat  he,  Kapp,  had  better  renew  it,  or  the 
note  would  be  under  protest ;  to  which  Kapp  answered,  that  he 
would  indorse  no  more  for  Laird.  It  also  a])j)eared,  that  Carson, 
a  clerk  in  the  bank,  on  the  same  13th  of  February,  after  bank 
hours,  by  direction  of  the  cashier,  took  the  note  to  Ka})p  to 
demand  payment,  or  a  renewal,  wlien  he  replied,  that  he  would 
do  nothing  in  it ;  that  afterwards,  on  the  same  day,  Carson  car- 
ried the  note  to  a  notary  public,  who  then  protested  it.  The 
notary  neither  gave  nor  sent  any  notice  to  Kapp ;  but,  the  next 
day,  the  14th,  the  same  clerk,  by  the  direction  of  the  ca-hier, 
went  to  Kaj)p,  and  told  him  the  note  was  protested,  and  re- 
quested him  to  pay  it  off,  or  have  it  renewed.  Befoi-e  the  note 
became  due,  Laird,  tlie  drawer,  had  died,  and  axlministrators  of 
his  estate  had  been  appointed. 

377 


336  SUPREME  COURT  [LancaMer, 

[Rahm,  Executor  of  Kapp,  v.  The  Philadelphia  Bank.] 

On  the  trial,  tlie  plaintiff  below  requested  the  coiirt  to  charge 
the  jury  as  follows  : — 

"1.  That  when  the  note  is  payable  at  a  particular  place, 
such  as  a  bank,  and  on  a  particular  day,  and  the  indorsee  was 
there  until  the  bank  closed,  at  the  usual  hour  of  closing  the 
bank,  on  the  day  it  fell  due,  ready  to  receive  payment,  no 
further  demand  on  the  promiser  is  necessary  to  charge  the 
iudorser. 

"  2.  That  there  is  no  particular  form  of  notice,  to  the  in- 
dorser  of  a  note,  prescribed  by  law ;  it  is  enough  if  under  all 
circumstances  it  puts  him  on  inquiry ;  and  this  may  be  as  well 
a  verbal  as  a  written  notice ;  and  this  notice  may  be  given  by 
any  person  authorized  to  give  such  notice ;  and  that  the  agency 
of  a  notary  public  is  not  necessary  to  give  such  notice,  nor  is 
it  his  duty  to  do  so. 

"  3.  That  a  protest  of  a  promissory  note,  or  inland  bill  of 
exchange,  and  notice  thereof^  are  not  necessary  to  charge  the 
iudorser — this  doctrine  only  applies  to  foreign  bills  of  ex- 
change. 

"  4.  Here  the  defendant  lived  in  the  town  where  the  bank 
was  held  ;  no  written  notice  was  necessary  ;  verbal  notice  in  this 
case  was  more  regular. 

"  5.  That  the  act  of  assembly,  incorporating  the  Philadelphia 
Bank,  and  which  places  notes,  or  bills  discounted  at  that  bank, 
on  the  footing  of  foreign  bills  of  exchange,  applies  only  to  the 
case  of  defalcation,  and  does  not  alter  the  nature  of  the  promis- 
sory note,  so  as  to  require  a  protest,  as  in  case  of  a  foreign  bill 
of  exchange. 

"  6.  That  this  suit  is  founded  on  a  promissory  note  payable 
at  the  Office  of  Discount  and  Deposit  at  Harrisburg,  where 
both  the  drawer  and  iudorser  lived — and  verbal  notice  was 
given  by  John  Carson,  a  clerk  in  the  bank,  after  the  bank 
closed,  on  the  same  day  the  note  fell  due,  by  presenting  the 
same  to  the  iudorser,  Michael  Kapp,  the  defendant  in  this  cause, 
that  the  note  was  not  paid ;  and  a  request  to  pay  the  same,  or 
P^r»o7-|  renew  it  with  another  note,  was  made,  *which  was  suffi- 
L  -I  cient  to  charge  the  iudorser  without  protesting  the 
note,  or  producing  a  copy  of  a  protest  of  the  same  note  to  the 
indorser. 

"  7.  That  it  having  been  proved  in  this  cause  by  the  notary 
public,  that  the  note  was  regularly  protested  on  the  day  it  fell 
due,  and  after  the  hour  of  closing  the  bank,  notice  of  which 
protest  was  given  to  the  defendant  on  the  next  day,  by  a  regu- 
lar clerk  of  the  Office  of  Discount  and  Deposit,  this  is  sufficient 
notice  in  law,  to  charge  the  indorser,  without  producing  the 
protest  to  him." 
378 


June  l,lS2d.]        OF   PENNSYLVANIA.  337 

[Kahm,  Executor  of  Kapp,  v.  The  Philadelphia  Bank.] 

The  court,  iu  their  charge  to  the  jury,  among  otlier  things, 
stated,  "  That  demand  of  payment  of  a  note  at  the  Office  of 
Discount  and  Deposit,  is  sufficient,  if  the  note  is  drawn  paya- 
ble at  the  said  office,  for  in  such  cases,  the  payment  of  tlie  note 
at  the  Office  of  Discount  and  Deposit,  is  part  of  the  contract. 
But  where  no  time  and  phice  are  fixed  for  the  payment  of  a 
note,  there  must  be  a  demand  on  the  ch-awer. 

"  If  the  Office  of  Discount  and  De})osit  was  the  owner  of 
the  note,  and  held  the  note  on  the  day,  and  at  the  place  men- 
tioned in  it  for  payment,  and  was  ready  to  receive  the  money, 
notice  to  the  dra\ver  to  pay  it  was  not  necessary,  nor  was  a  de- 
mand on  the  administrators  of  Mr.  Laird,  (who  died  before  the 
note  fell  due,)  necessary :  a  notice,  by  the  clerk  of  the  Office  of 
Discount  and  De])osit,  sent  for  the  purpose,  to  the  indorser,  of 
the  default  of  payment  by  the  drawer,  is  good  notice  if  it  be 
given  in  due  and  proper  time. 

"  Verbal  notice  is  sufficient — a  written  notice  is  not  necessary. 
No  form  of  notice  to  the  indorser  is  prescribed  by  law.  All 
tiiat  is  necessary  is,  that  he  should  iiave  such  notice,  either  ver- 
bal or  written,  given  in  time,  as  will  inform  him  of  the  default 
of  payment  by  the  maker  or  drawer,  so  as  to  put  him  on  an  in- 
quiry, and  i)repare  him  to  pay  it,  or  defend  himself. 

''  No  protest  was  necessary ;  and  notice  of  a  protest  was  not 
required  or  necessary  to  be  given  to  Michael  Kapj).  It  is 
sufficient  if  the  indorser  receives  notice  in  a  reasonable  time, 
of  the  non-payment  of  the  note  by  the  drawer.  The  j)rovisioa 
in  the  third  section,  article  tenth,  of  the  act  incorporating  the 
Philadelphia  Bank,  4  Smith,  152,  153,  wliich  places  notes  dis- 
counted by  the  bank,  '  on  the  siuue  footing  with  foreign  bills 
of  excixange,'  is  for  the  purpose  of  preventing  a  defalcation  or 
set-off  by  the  drawer  against  the  indorsee,  of  such  equitable 
matters  and  circumstances  to  Avhich  the  note  was  subject  iu 
the  hands  of  the  indorser.  2  Dall.  2G3.  A  protest  is  not 
essentially  necessary  to  enable  the  indorsee  of  a  note  to  recover; 
but  is  indispensably  requisite  in  the  case  of  a  foreign  bill  of 
exchange. 

"It  is  contended  by  the  defendant's  counsel,  'that  there  is 
no  evidence  that  Mr.  Laird,  or  his  administrators,  had  not  funds 
in  the  Office  of  Discount  and  Deposit,  to  meet  tiie  payment  of 
the  note.'  There  is  evidence  of  a  protest  of  the  note ;  and  tliis 
protest  *is  prhiia  facie  evidence  of  the  fact  that  there  r^i^ooq-] 
were  no  funds  there  :  if  there  were  funds  there,  it  lies  L  '^  -I 
ou  the  defendant  to  show  the  fact. 

"And  although  this  protest  is  stated"  to  be  made  at  the  re- 
quest of  tlie  '  Office  of  Discount  and  Dejwsit,'  this  does  not 
render  the  protest  void ;  for  it  is  not  necessary  that  it  should  be 

379 


338  SUPREME  COUET  [Lancaster, 

[Eahm,  Executor  of  Kapp,  v.  The  Philadelphia  Bank.] 
stated,  that   it  was  made  at   the  request  of  the  Philadelphia 
Bank.     Nor  does  the  delay  in  bringing  suit,  for  two  years,  in 
law,  discharge  the  indorser. 

"  Did  Michael  Kapp  receive  notice  on  the  13th  of  February, 
1815,  that  the  note  was  not  paid?  This  is  a  fact  for  the  jury 
to  ascertain  from  the  evidence.  If  Michael  Kapp  did  not  re- 
ceive such  notice  on  that  day,  he  would  be  discharged  from  his 
liability  as  indorser.  If  he  did  receive  such  notice  on  that  day, 
he  will  be  liable  for  the  payment  of  the  note.  As  he  lived  in 
the  same  town  with  the  other  ])arties,  notice  ought  to  have  been 
given  on  the  same  day,  the  13th  of  February,  1815;  for  the 
earliest  notice  ought  to  be  given.  ^Notice  giv-en  on  the  next  day 
is  not  sufficient." 

The  counsel  for  the  plaintiif  excepted  to  the  charge  of  the 
court  on  the  seventh  point,  and  4he  residue  of  the  charge  was 
excepted  to  by  the  counsel  for  the  defendant.  The  verdict  was 
for  the  j)laintiff,  and  the  defendant  took  a  writ  of  error. 

The  following  errors  were  assigned  in  this  court : — 

"1st.  That  the  court  erred,  in  law,  in  charging  the  jury  on 
the  plaintiff's  points,  Nos.  1,  2,  3,  4,  5,  and  6. 

"  2.  The  court  gave  it  as  the  law,  that  no  protest  was 
necessary  to  charge  the  indorser,  and  create  a  liability  in  him 
to  pay. 

"  3.  That  there  was  no  demand  of  payment  of  the  note  made 
of  the  payer,  Samuel  Laird,  or  of  his  representatives,  when  the 
note  fell  due ;  and,  no  notice  of  a  demand  of,  and  non-payment 
by  the  payer,  given  to  the  indorser,  as  required  by  law ;  and, 
that  the  statements  filed  in  the  cause,  set  out  no  cause  of 
action. 

"  4.  That  the  court  erred  in  their  general  charge  to  the  jury, 
in  stating,  that  demand  of  ])ayment  of  a  note,  at  the  Office  of 
Discount  ^nd  Deposit,  is  sufficient,  if  the  note  is  drawn  pay- 
able at  the  said  office :  that  if  the  Office  of  Discount  and 
De])osit  w'as  the  owner  of  the  note,  and  held  the  note  on  the 
day,  and  at  the  place  mentioned  in  it  for  payment,  and  was 
ready  to  receive  the  money,  notice  to  the  drawer  to  pay  it  was 
not  necessary ;  nor  was  a  demand  on  the  administrators  of 
Mr.  Laird  (who  died  before  the  note  fell  due),  necessary ; 
and,  that  a  notice  by  the  clerk  of  the  Office  of  Discount  and 
Deposit,  sent  for  the  purpose  to  the  indorser,  of  the  default 
of  payment  by  the  drawer,  is  good  notice,  if  it  be  given 
in  due  and  proper  time :  That  no  protest  was  necessary  ;  and 
notice  of  a  protest  was  not  requireil,  or  necessary  to  be  given 
to  Michael  Kapp ;  and'  it  is  sufficient  if  the  indorser  receives 
notice  in  a  reasonable  time  of  the  non-payment  of  the  note  by 
the  drawer.  And  that  the  provision  in  the  third  section, 
380 


June  l,lS2d.]        OF   PENNSYLVANIA.  339 

[Rahm,  Executor  of  Kapp,  v.  The  Philadelphia  Bank.] 

article  tenth,  of  the  act  iucorporating  *the  Philadelphia  r^ooq-i 
Bank,  4  Smith,  152,  153,  which  })]aces  notes  discountefl  ■-  ' 
by  the  bank,  '  on  the  same  footing  with  foreign  bills  of  ex- 
change,' is  for  the  purpose  of  preventing  a  defalcation,  or  set-oif 
by  the  drawer  against  the  indorsee,  of  such  equitable  matters 
and  circumstances  to  which  the  note  was  subject  in  the  hands 
of  tlie  indorser,"  &c. 

Douglas  and  Elder,  for  the  plaintiff  in  error,  argued.  That 
there  is  no  averment  in  the  record,  nor  was  there  any  proof,  of 
demand  on  the  drawer,  or  his  representatives.  Demand  is  ne- 
cessary, or  an  effort  to  make  it.  Chitty  on  Bills,  279  ;  Duncan 
V.  M'CuUough,  4  Serg.  &  Rawle,  481.  It  is  immaterial  at  what 
place  the  note  may  be  payable,  under  the  circumstances  of  the 
case.  The  indorser  is  but  a  surety.  His  promise  is  conditional. 
Only  the  law  merchant  makes  him  liable.  M'Kinney  v.  Craw- 
ford, 8  Serg.  &  Rawle,  353.  There  is  no  dispensing  with  notice 
on  account  of  death,  bankruptcy,  <fec.  Gibbs  v.  Cannon,  9  Serg. 
&  Rawle,  201.  Nearly  every  point  of  this  case  seems  decided 
by  the  case  of  The  Juniata  Bank  v.  Hale,  16  Serg.  &  Rawle, 
159.  But  the  act  of  assembly  is  conclusive.  The  words  are 
absolute  and  peremptory.  "And  all  notes,  or  bills,  at  any  time 
discounted  by  the  said  corporation,  shall  be,  and  they  are  hereby 
placed  on  the  same  footing  as  foreign  bills  of  exchange ;  so  that 
the  like  remedy  shall  be  had  for  the  recovery  thereof  against  the 
drawer  and  drawers,  indorser  and  indorsers,  and  with  like  effect, 
except  so  far  as  relates  to  damages,  any  law,  custom  or  usage  to 
the  contrary  thereof,  in  any  wise  notwithstanding."  4  Sm.  L. 
152,  sec.  3d,  art;  10th.  Now,  the  rule  contended  for  is,  that  a 
protest  of  a  foreign  bill  of  exchange  must  be  made,  and  legal  notice 
of  the  protest  given,  or  sent,  unless  as  against  him  who  draws 
without  funds  in  the  hands  of  the  drawee.  Rob.  Dig.  378,  et  seq.; 
Gale  V.  Walsh,  5  T.  R.  239 ;  1  Selw.  N.  P.  321 ;  2  T.  R.  713; 
2  Comm.  467,  &c. ;  Chitty  on  Bills,  279,  d  seq.;  lb.  Appendix, 
Narr.  on  Foreign  Bills;  Lenox  v.  Leverett,  10  Mass.  1.  In- 
deed, what  possible  use  can  there  be  in  a  protest,  if  it  is  to  be 
concealed,  and  no  information  of  it  given  ? 

Shock  and  G.  Fisher,  contra,  denied,  that  giving  a  copy  of  the 
notice  was  necessary,  either  by  the  mercantile  law,  or  by  the  act 
of  assembly.  The  protest,  itself,  is  unnecessary  on  a  note,  or 
inland  bill.  Chitty  on  Bills,  276,  284 ;  5  Johns.  Rep.  375 ; 
The  Bank  of  North  America  v.  M'Knight,  1  Yeates,  145.  As 
to  the  words  of  the  charter  relied  on,  their  sole  intent  was  to 
obviate  the  mischiefs  of  set-off.  It  was  so  decided  on  the  same 
words  in  another  law,  in  the  case  of  Roberts  v.  Cay's  Executors, 

381 


339  SUPREME  COURT  [Lancaster, 

[Rahm,  Executor  of  Kapp,  v.  The  Philadelphia  Bank.] 

2  Dull.  2(50.  This  dtxjision  was  followed  in  the  construction  of 
much  stronger  words  of  a  bank  charter,  in  the  case  of  tlie  Far- 
mei*s'  and  Mechanics'  Bank  v.  Massey's  Executors,  2  S<'rg.  & 
Rawle,  114,  and  Wolfersberger  v.  Bucher,  10  Serg.  &  Rawle,  10. 
Here  notice  of  the  j)rotest  was  in  fact  given.  Even  were  it  the 
r*'?4m  ^'^^y  ^^''^  ^^^^  foreign  hill  *of  exchange,  the  decision  of 
L  "^^^J  the  court  below  was  right.  1  M.  &  S.  289  ;  lb.  545  ;  3 
Camp.  334  ;  2  Johns.  Cas.  337  •  10  Johns.  Rep.  490;  11  Johns. 
231 ;  Chitty  on  Bills,  289. 

The  opinion  of  the  court  was  delivered  by 

Tod,  J, — The  errors  alleged  may,  for  the  sake  of  shortness, 
be  reduced  to  three.  1.  In  deciding  that  no  demand  was  requi- 
site upon  Laird,  the  maker  of  the  note,  or  upon  his  representa- 
tives. 2.  That  verbal  notice  by  the  clerk  of  the  bank,  was  suf- 
ficient. 3.  In  deciding  that  under  the  words  of  the  act  of  as- 
sembly, incorporating  the  bank,  both  the  notice  of  protest,  and 
the  protest  itself,  were  unncessary. 

On  the  two  first  allegations  of  error,  there  is  not,  except  from 
the  peculiar  wording  of  the  act  of  assembly,  the  least  doubt  with 
any  member  of  the  court.  We  all  agree,  that  in  the  common 
case  of  a  note,  under  the  circumstances  here  appearing,  it  would 
have  been  unnecessary  to  make  any  demand  of  the  drawer,  or 
of  his  representatives.  Chitty  on  Bills,  395,  295,  297 ;  Berk- 
shire Bank  v.  Jones,  6  Mass.  524.  Also,  that  the  agency  of  a 
notary  public  was  unnecessary,  and  that  the  verbal  notice  sent 
by  the  clerk  of  the  bank  was  sufiicient.  Chittv  on  Bills,  276, 
284,  293,  295,  297 ;  Bank  of  North  America  'v.  M'Kuight,  1 
Yeates,  145;  s.c.  2  Dall.  158. 

On  the  third  point ;  was  a  protest,  and  notice  of  the  in- 
dorser,  rendered  necessary  by  the  words  of  the  act  of  assembly, 
placing  notes  discounted  at  this  bank  on  the  same  footing  with 
foreign  bills  of  exchange?  It  seems  to  me  not.  As  to  the 
reason  for  imposing,  per  force,  this  troublesome  formality  upon 
the  bank  and  the  dealers  with  it,  a  formality  which  may  be  dis- 
pensed with,  if  the  holder  pleases,  in  every  common  case  of  a 
note  or  inland  bill ;  it  is  not  even  alleged,  that  any  reason  exists. 
But  it  is  argued,  the  words  of  the  law  are  positive  to  that  ef- 
fect. They  are  not  so  in  my  opinion.  Clear  it  seems  to  me, 
that  the  legislature  had  not  the  remotest  intention  to  lay  down 
any  indispensable  form  of  proof,  or  to  change  the  law  of  evi- 
dence, but  only  to  secure  the  bank  from  loss  or  dispute,  arising 
out  of  the  previous  dealings  between  the  parties  to  a  note  or  bill 
discounted,  and  from  all  defence  of  want  or  failure  of  a  consid- 
eration. It  seems  very  common  in  statutes  providing  for  any 
species  of  negotiable  paper,  against  the  strict  rule  of  the  com- 
382 


/wne  1,1829.]         OF   PENNSYLVANIA.  340 

[Kahm,  Executor  of  Kapp,  v.  The  Philadelphia  Bank.] 

mon  law,  to  declare  the  intent  by  express  reference  to  foreign 
bills  of  exchange.  There  are  similar  words  in  most,  if  not  all  of 
our  bank  charters.  So,  in  tlie  first  and  second  acts  of  congress, 
creating  the  bank  of  the  United  States.  In  the  very  act  of  as- 
sembly in  question,  the  usual  bank  notes  to  be  issued  by  the 
bank  of  Philadelphia,  though  not  under  their  seal,  shall  be  bind- 
ing and  obligatory  upon  the  corporation,  in  the  like  manner, 
and  with  the  like  elfect,  as  foreign  bills  of  exchange  now  are. 
Now,  it  will  hardly  be  contended,  that  a  note  of  this  bank, 
payable  to  A.  B.  or  bearer,  may  *not  be  sued  on  by  0.  r*o-i-i 
D.  without  the  forms  of  protesting.  But  I  take  the  ^  -■ 
question  to  be  already  settled.  On  the  same  words  in  the  char- 
ter of  the  bank  of  Pennsylvania,  this  court  held,  in  Roberts  v. 
Cay's  Executors,  2  Dall.  260,  that  a  note  thus  discounted,  was 
placed  on  the  footing  of  a  foreign  bill  of  exchange,  only  as  to 
the  remedy  and  the  exemption  from  set-off.  And  in  etFect  this 
decision  was  followed  up  in  the  cases  of  the  Farmers'  and 
Mechanics'  Bank  v.  Massey's  Executor,  2  Serg.  &  Rawle,  114, 
and  Wolfersberger  i\  Buclier,  10  Serg.  &  Rawle,  10.  There 
would  seem  to  be  another  ground  upon  which  this  judgment 
might  be  sustained.  Admitting  that  the  case  requires  the  same 
evidence  wdiich  would  be  required  to  support  an  action  on  a 
foreign  bill  of  exchange,  sent  from  a  distant  country,  yet  it 
seems  to  be  the  settled  mercantile  law,  that  neither  the  copy  of 
the  protest,  nor  notice  of  it,  need  be  given  or  sent,  in  the  case 
of  a  foreign  bill,  where  the  party  to  be  affected  happens  to  be 
in  the  country  at  the  time  of  the  refusal  to  accept  or  to  pay. 
My  opinion  is  to  affirm  the  judgment. 

RoGEES,  J.,  and  Smith,  J.,  concurred  in  th-e  above  opinion. 
Gibson,  C.  J.,  and  Huston,  J.,  dissented. 

Judgment  affirmed. 

Cited  by  Counsel,  6  Barr,  167 ;  9  S.  82;  15  N.  136. 

ated  by  the  Court,  4  \V.  &  S.  511 ;  5  W.  &  S.  94 ;  5  Wright,  326. 


383 


341  SUPREME  CX)URT  [Lancaster, 


[Lancaster,  June  1, 1829.] 

The  Mechanics'  Bank  of  the  City  and  County  of  Phila- 
delphia against  Fisher. 

APPEAL. 

A  power  of  attorney  to  the  prothonotary  to  discontinue  a  snit,  cannot  be 
executed  by  his  clerk. 

A  plaintiff  will  not  be  permitted  to  discontinue,  where  it  will  give  him  an 
advantage,  or  tend  to  vex  and  oppress  the  defendant. 

Therefore,  where  the  plaintiftj  residing,  in  Philadelphia,  brought  suit  in 
Dauphin  county,  and  the  defendant  took  out  a  rule  of  arbitration,  and  went 
to  Philadelphia  to  serve  it  on  the  plaintiff,  who  immediately  sent  a  power  of 
attorney  to  the  prothonotary  of  Dauphin  county  to  discontinue  the  suit  there, 
and  sued  the  defendant  again  in  Philadelphia,  notwithstanding  which,  arbi- 
trators were  appointed  in  Dauphin  county,  who  proceeded  to  make  an  award 
in  favour  of  the  defendant;  against  which  proceedings,  the  attorney  of  the 
plaintiff  protested,  and  applied  to  the  judge  at  the  Circuit  Court  to  set  them 
aside,  who  did  so :  held,  on  an  appeal,  that  the  discontinuance  was  improper, 
and  the  proceedings  subsequent  to  it  valid. 

This  was  an  appeal  by  the  defendant  from  a  decision  of  Tod, 
J.,  at  the  Circuit  Court  in  Dauphin  county,  setting  aside,  on 
motion  of  the  plaintiff,  a  rule  of  reference  and  an  award  of  ar- 
bitrators. The  action  was  by  summons  in  debt  on  bond,  not 
exceeding  five  thousand  dollars.  The  material  facts  appeared 
on  the  record,  and  were  as  follows : 

r**?491  *^^  ^^^  I9ih  of  July,  1828,  the  defendant  entered  a 
t  -•  rule  of  reference,  declaring  his  intention  to  have  arbi- 
trators chosen  on  the  9th  of  August,  1828.  On  the  24t]i  of 
July,  this  rule  was  duly  served  by  the  defendant  on  tlie  plain- 
tiif.  On  the  26th  of  July,  the  plaintiflP  made  the  following 
order  of  discontinuance  : — 

"  Know  all  men  by  these  presents,  that  the  Mechanics'  Bank 
of  the  city  and  county  of  Philadelphia,  have  nominated  and 
appointed  "Obed  Fahnestoek,  prothonotary  of  the  Circuit  Court 
of  Dauphin  county,  their  true  and  lawful  attorney,  to  discon- 
tinue any  suits  brought  by  the  said  Mechanics'  Bank  of  the  city 
and  county  of  Philadelphia,  or  in  their  corporate  name,  against 
George  Fisher,  Esq.,  in  the  Circuit  Court  of  Dauphin  county, 
or  in  the  Common  Pleas  of  Dauphin  county.  In  witness  where- 
of, the  said  Mechanics'  Bank  of  the  city  and  county  of  Phila- 
delphia, hereunto  set  their  common  seal  this  26th  day  of  July, 
A.  D.  1828. 

«  [Seal.] 

•'Attest,  J.  Lamb,  president." 
384 


June  1,1829.]        OF   PENNSYLVANIA.  342 

[The  Mechanics'  Bank  of  the  city  and  county  of  Philadelphia  v.  Fisher.] 

This  paper  Avas,  on  the  28th  of  July,  filed  in  the  office;  and 
on  the  same  day,  a  discontinuance  of  the  action  was  entered  on 
the  docket  by  Charles  H.  Snider,  the  clerk  of  the  prothonotary. 
On  the  same  day,  tlie  defendant's  attorney  filed  of  record,  in  the 
cause,  a  paper  as  follows  : — 

"  The  defendant  objects  to  the  discontinuance  of  this  suit,  as 
a  rule  to  refei*  has  been  taken  out,  and  served  upon  the  presi- 
dent and  cashier  of  the  Mechanics'  Bank  of  the  city  and 
county  of  Philadelphia ;  and,  also,  objects  to  the  payment  of 
the  costs. 

"Samuel  Douglas." 

Next  followed  this  entry  :— 

"August  8th,  1828. — The  discontinuance  of  the  above  suit 
being  objected  to,  Francis  R.  Shunk,  Esq.,  attorney  in  fact  for 
the  plaintiff,  from  abundant  caution,  discontinues  the  above  suit, 
and  protests  against  the  appointment  of  arbitrators,  or  any 
other  proceedings  in  this  suit.     See  paper  filed." 

Arbitrators  were  appointed  in  the  following  manner  : — 

"And  now,  to  wit:  9th  of  August,  1828,  Samuel  Douglas, 
Esq.,  attorney  for  the  defendant,  appears  for  the  defendant; 
the  plaintiff  not  appearing,  Francis  E,.  Shunk  appears  by  special 
■warrant  of  attorney  for  the  bank,  and  protests  against  choosing 
arbitrators,  and  refuses  to  have  his  name  put  on  record  as  attor- 
ney for  the  bank ;  says,  the  suit  is  discontinued.  Mr.  Douglas 
insists  upon  choosing  arbitrators,  and  the  prothonotary  is  to 
choose  for  the  bank,  because,  as  he  says,  the  suit  is  not  legally 
discontinued.     Arbitrators  to  be  five,  viz. : — 

"  John  Rhodes,  by  the  prothonotary, 
"John  Davies,  "        defendant, 

"  Frederick  Heisely,  "        prothonotary, 

"  Warner  Holbrook,  "        defendant, 

"  John  Whitehill,  "       prothonotary." 

*Due  notice  of  the  time  and  place  of  the  meeting  of  r*o  <o-i 
the  arbitrators  was  served  on  the  plantiff  at  the  bank-  •-  -• 
ing-house. 

On  the  12th  of  September,  the  following  award  was  filed: — 

"  We,  the  arbitrators,  as  above  named,  having  met  at  the  time 
and  place  appointed,  having  been  severally  sworn  and  affirmed, 
according  to  law,  (Francis  R.  Shunk  appearing  as  agent  for  the 
plaintiff,  and  Samuel  Douglas,  Ei<q.,  attorney  for  the  defendant,) 
do  report,  that  we  find  no  cause  of  action :  plaintiff  for  costs. 

VOL.  I. — 25  385 


343  SUPREME   COURT  [TMncaster, 

[The  Mechanics'  Bank  of  the  city  and  county  of  Philadelphia  r.  Fisher.] 

Witness  our  hands,  September  6th,  1828."     Signed  by  all  the 
arbitratoi-s. 

On  the  1st  of  October,  exceptions  to  the  award  were  filed, 
viz. : — 

"  1st.  That  the  report  is  void  and  contrary  to  law,  there  being 
DO  cause  in  court  at  the  time  of  the  appointment  of  arbitrators, 
the  above  suit  having  been  discontinued. 

"  2,  The  report  states,  that  F.  R.  Shunk  appeared  before  the 
arbitrators  as  agent  for  tlie  phiintilf,  and  does  not  state,  that 
Francis  R.  Shunk,  as  the  special  attorney  for  the  Mechanics' 
Bank  of  the  city  and  county  of  Philadelphia,  appeared  l>efore 
the  arbitrators  for  the  sole  purpose  of  exhibiting  to  the  arbitra- 
tors the  evidence  of  the  discontinuance  of  this  cause,  giving 
them  notice  of  the  discontinuance,  and  protesting  against  any 
further  proceedings  being  had  in  the  cause ;  and  praying  that 
the  evidence  and  notice  so  given,  and  objections  to  the  proceed- 
ings might  be  noted  upon  the  record  of  the  proceedings  of  the 
arbitrators,  which  fact  a])pears  from  the  statement  of  four  of  the 
arbitrators  hereunto  annexed. 

"  Feangis  R.  Shunk." 

To  these  exceptions  were  appended  the  oath  of  F.  R.  Shunk 
to  their  truth,  and  the  following  certificate  : — 

"  We,  the  arbitrators,  appointed  in  the  above  cause,  do  state, 
that  at  the  meeting  of  the  arbitrators,  on  the  6th  of  September, 
1828,  at  the  house  of  J.  B.  Henzey,  in  the  borough  of  Harris- 
burg,  Francis  R.  Shunk,  as  the  special  attorney  of  the  Mechan- 
ics' Bank  of  the  city  and  county  of  Philadelphia,  apj>eared  be- 
fore us,  and  presented  a  certified  copy  of  the  record  of  the  above 
stated  cause,  accompanied  with  a  notice  and  protest  against  any 
further  proceedings,  which  paper  we  have  filed  in  the  prothono- 
tary's  office,  with  our  report :  That  he  appeared  before  us  for 
no  other  purpose,  as  he  then  stated ;  but  after  having  pre- 
sented the  said  copy  of  the  record,  notice,  and  protest,  he  with- 
drew. 

Hairiahurg,  Oct.  1st,  1828." 

Signed  by  four  of  the  arbitrators. 

The  judge  at  the  Circuit  Court,  having,  as  already  mentioned, 
set  aside  the  report  of  the  arbitrators,  the  defendant  appealed 
to  this  court,  and  filed  the  following  reasons : — 

"  Reasons  from  appealing  from  the  decision  of  the  Circuit 
Court  in  granting  the  motion  to  set  aside  the  report  of  the 
iirbitrators,  and  all  subsequent  proceedings  in  the  above  stated 
«ause. 

"  1st.  Because  a  rule  to  choose  arbitrators,  under  the  com- 
386 


June  l,lS2d.]        OF  PENNSYLVANIA.  344 

[The  Mechanics'  Bank  of  the  city  and  county  of  Philadelphia  v.  Fisher.] 

pulsory  *act  of  the  20th  of  March,  1810,  was  duly  en-  r*o44-i 
tered  by  the  defendant,  and  served  upon  the  plaintiff;  ^  J 
and  a  suit  for  the  same  cause  of  action  was  instituted  in  Phila- 
delphia, and  the  writ  served  before  any  attempt  to  discontinue 
the  above  suit,  and  after  the  service  of  the  said  rule  to  choose 
arbitrators. 

"  2d.  That  there  is  no  legal  right  to  discontinue  the  suit  on 
the  special  power  of  attorney  to  Obed  Fahnestock,  Esq.,  the 
prothonotary  of  the  Court  of  Common  Pleas  of  Dauphin  county, 
from  the  plaintiff,  by  C,  H.  Snider,  his  clerk,  who  entered  a 
discontinuance  of  the  said  suit  in  the  absence  of  the  said  pro- 
thonotary, and  without  his  order  and  consent :  That  both  this 
discontinuance  and  that  entered  by  Francis  R.  Shunk,  Esq.,  as 
attorney  in  fact  for  the  plaintiff,  were  subsequent  to  the  ser- 
vice of  the  said  rule  to  choose  arbitrators,  and  were  illegal  and 
void. 

"  3d.  That  the  plaintiff  could  not  discontinue  the  cause  under 
the  then  existing  circumstances,  (prout  the  record  and  service 
of  the  said  rule,)  without  the  consent  of  the  defendant,  or  his 
attorney. 

"  4th.  That  the  arbitrators  were  appointed,  made  out,  and  re- 
turned to  the  clerk  of  the  Circuit  Court  of  Dauphin  county 
their  report,  according  to  law,  in  favour  of  the  defendant ;  and 
the  said  report  had  lawfully  become  a  judgment  in  favour  of 
the  defendant  before  the  motion  was  made  in  the  Circuit 
Court,  to  whose  decisions  these  exceptions  are  filed,  {2^)'out  the 
record.) 

"  5th.  And,  that  during  the  pendency  of  the  said  rule  to 
choose  arbitrators,  and  the  proceedings  under  it,  neither  the 
plaintiff,  nor  any  court,  had  legal  authority  to  discontinue  this 
suit  without  the  consent  of  the  defendant ;  because,  the  said 
cause  was  not  pending  in  the  said  court,  but  had  attached  in 
another  tribunal." 

Douglas  argued  for  the  appellant. — The  power  to  enter  the 
discontinuance  was  special  to  Fahnestock,  the  prothonotary, 
and  the  entry  by  Snider,  under  the  pretence  of  it,  was  a  nullity. 
The  second  discontinuance,  by  the  attorney,  was  no  better.  It 
was  after  the  reference  ;  after  the  cause  was  out  of  court.  Dis- 
continuance is,  like  a  nonsuit,  an  act  of  the  court,  and  will  not 
be  permitted  when  injurious  to  the  other  party.  The  second 
writ  is  for  the  same  cause.  It  is  not  alleged  there  was  any 
mistake  in  the  first  action.  The  plan  of  ending  the  suit  already 
brought,  and  commencing  another  in  Philadelphia,  was  merely 
for  the  advantage  of  the  plaintiff,  and  to  the  great  detriment  of 
the  defendant.     He  had  incurred  all  the  expense  and  trouble 

387 


344  SUPREME   (X)URT  [LancaMer, 

[The  Mechanics'  Bank  of  the  city  and  county  of  Philadelphia  v.  Fisher.] 

of  entering  the  rule  of  reference,  serving  the  notice,  employing 
counsel,  and  prej)aring  for  the  trial.  He  was  under  the  pro- 
tection of  the  law  in  the  act  of  serving  the  rule,  when  the 
new  writ  was  taken  out  against  him.  Suj)pose  leave  to  dis- 
continue, had  been  applied  for  under  these  circumstances,  would 
it  have  been  granted  ?  Certainly  not.  And  if  the  court  would 
not  permit  the  tiling  to  be  done  if  asked  for,  they  will  not  sanc- 
tion it  when  attempted  without  their  permission.  The  defendant 
had  the  right  of  pleading  the  pendency  of  the  former  j)ro- 
r*'^4^1  c^^^^^Dgs  in  abatement  of  the  new  writ.  *So,  a  dcial- 
•-  -•  cation  might  have  been  offered.  All  these  fair  and 
legal  advantages  are  taken  away  from  him  by  the  decision  of 
the  Circuit  Court.  Payment  of  the  costs  could  be  no  amends. 
The  plaintiff  had  made  his  election,  and  is  bound  by  it.  The 
bank  chose  to  sue  in  Dauphin  county.  Besides,  the  cause 
was  out  of  court,  and  not  subject  to  a  discontinuance.  The 
jurisdiction  of  the  arbitrators  had  attached.  The  plaintiff's 
only  remedy  against  the  award  was  by  appeal,  according  to 
the  act  of  assembly.  Bigler  and  Stall  v.  Landis,  in  this  court, 
Lancaster,  May  1825,  (MSS.)  decided,  that  a  cause  under  a  rule 
of  reference,  cannot  be  put  down  for  trial  in  court.  Reference 
puts  a  cause  out  of  court,  and  an  award  is  a  record,  and  a 
judgment,  upon  which  execution  issues.  Thompson  v.  White, 
4  Serg.  &  Rawle,  135.  The  court  below  shall  not  correct 
an  award  of  arbitrators,  though  illegal  on  the  face  of  it.  Post 
V.  Sweet,  8  Serg.  &  Rawle,  391  ;  Girard  v.  Gettig,  2  Binn. 
234.  The  pkintiff  is  not  permitted  to  withdraw  his  suit  to 
the  injury  of  the  defendant.  Lewis  v.  Culbertson,  11  Serg.  & 
Rawle,  59. 

Shunk,  contra. — The  question  is,  whether  by  law,  the  plain- 
tiff could  discontinue.  Circumstances  are  mentioned  in  the 
argument,  which,  from  want  of  instruction,  can  neither  be  ad- 
mitted nor  denied.  If  a  new  suit  has  been  brought  for  the  same 
cause,  let  the  defendant  plead  to  it  the  pendency  of  the  first 
action,  provided  the  discontinuance  is  invalid.  The  notice 
served  upon  the  bank  to  produce  their  books  before  the  arbi- 
trators at  Harrisburg,  is  a  very  sufficient  answer  to  the  com- 
plaint of  oppression,  and  a  very  good  reason  for  preferring  to 
nave  the  cause  decided  nearer  home,  rather  than  in  Philadel- 
phia. A  plaintiff  may  always  sue  in  any  manner  most  conve- 
nient to  himself,  provided  it  be  permitted  by  the  law.  The 
warrant  directed  to  Mr.  Fahnestock,  the  prothonotary,  from 
the  bank,  being  filed,  was  itself  a  discontinuance.  It  would 
be  strange  if  the  clerk  may  act  for  his  principal  in  anything 
else — may  enter  judgments,  and  administer  the  oath  on  appeal 
388 


June  1,  1829.]        OF  PENNSYLVANIA.  345 

[The  Mechanics'  Bank  of  the  city  and  county  of  Philadelphia  v,  Fisher.] 

— and  yet  may  not  enter  on  the  docket  the  substance  of  a 
paper  filed  in  the  office,  under  tlie  hand  and  seal  of  a,  party. 
But  the  second  discontinuance,  the  formality  of  which  appears 
to  be  unexceptionable,  was  entered  on  the  record,  not  only 
before  the  arbitrators  met,  but  one  day  at  least  before  they 
were  nominated.  No  declaration  was  filed,  no  proceedings  in 
the  ciuise  had,  no  costs  incurred,  except  by  the  defendant  him- 
self, and  those  were  all  paid  by  the  plaintiff.  It  is  agreed 
there  are  cases  where  one  cannot  discontinue  his  own  process ; 
as  in  replevin,  or  after  a  special  verdict,  or  a  demurrer,  or  plea 
of  defalcation,  or  after  arbitrators  have  met,  and  their  opinions 
have  been  discovered,  or  a  jury  is  ready  at  the  bar  to  give  a 
verdict ;  and,  perhaps,  after  arbitrators  have  been  chosen. 
With  these  exceptions,  not  one  of  which  has  the  least  possible 
bearing  upon  the  case  before  the  court,  a  plaintiff,  upon  j)aying 
costs,  may  go  out  of  court  at  his  own  option  as  readily  as  he 
may  come  in.  It  is  said  the  cause  was  out  of  court  by  the 
reference.  What  is  contended  for  is,  that  the  discontinuance 
*was  not  an  act  of  the  court,  nor  an  act  in  court ;  and  r*.o  ip-i 
that  a  cause  referred,  is  not  out  of  the  reach  of  the  ^  J 
parties  :  And  further,  that  by  our  practice,  there  is  no  substan- 
tial difference  in  reason  or  law,  between  a  nonsuit  in  court  and 
a  discontinuance  out  of  court.  They  are  but  different  modes 
of  effecting  tlie  same  thing ;  the  giving  up  of  -a  mau's  own 
action.  The  cases  relied  on  by  the  appellant  only  prove,  that 
while  a  rule  of  reference  is  depending,  a  cause  cannot  be  pro- 
ceeded on  iu  court ;  and,  that  when  arbitrators  have  been 
rightly  appointed,  their  award  is  irreversible,  except  by  aj)])eal. 
He  cited  Thompson  v.  White,  4  Serg,  &  Rawle,  141 ;  1  Tidd. 
Pr.  628 ;  Jac.  Law  Diet.  verb.  Discontinuance ;  Renner  v. 
Marshal,  1  Wheaton,  215. 

Smith,  J.,  (after  shortly  stating  the  facts,)  delivered  the 
opinion  of  the  court. 

I  consider  the  discontinuance  of  this  suit,  on  the  28th  day  of 
July,  18 1 8,  by  Cluirles  Snider,  irregular  and  void.  The  author- 
ity i)  discontinue,  was  to  Obcd  Fahnestock,  personally,  and 
ought  to  have  been  strictly  pursued.  Charles  Snider  had  no 
authority  from  the  bank  to  discontinue  their  suit,  or  move  in  the 
action  ;  he,  in  fact,  in  this  respect,  was  a  stranger  to  the  bank  ; 
and  at  the  time  he  recorded  or  entered  the  discontinuance,  had 
nothing  before  him,  showing  any  authority  to  him  for  doing  so. 
If  so,  his  act  M'as  void,  and  could  not  operate  as  a  discontinu- 
ance of  the  suit. 

The  right  of  a  j>arty  to  discontinue  his  suit  under  pn)])('r  re- 
strictions is  not  denied;    indeed,  generally  speaking,  it  is  the 

389 


346  SUPREME  COURT  [Lancaster, 

[The  Mechanics'  Bank  of  the  city  and  county  of  Philadelphia  v.  Fisher.] 

right  of  the  party,  but  is  not  always  a  matter  ol'  course,  for  the 
plaintiff  will  not  be  permitted  to  discontinue  where  he  will  gain 
an  advantage  by  it;  nor  will  he  be  indulged  in  doing  so,  if  prej- 
udicial to  his  opponent,  or  when  leading  to  vexation  or  oppres- 
sion. 

In  England,  in  the  King's  Bench  and  Common  Pleas,  it  is 
generally  done  by  obtaining  a  side  bar  rule  "for  leave  to  dis- 
continue the  action  upon  the  payment  of  costs."  But  from  the 
case  of  Belchier  v.  Gansell,  reported  in  4  Burr.  2502,  not  cited 
at  the  bar,  it  is  clear  that  the  rule  to  discontinue  will  not  be 
granted  if  it  be  intended  to  oppress  the  defendant  by  another 
suit.  To  me,  it  appears  the  case  of  Belchier  v.  Gansell,  if  not 
exactly  the  same  as  the  one  before  us,  is  very  analogous  to  it. 
In  that  case,  a  discontinuance  had  been  entered  on  a  side  bar 
rule,  and  then  the  plaintiff  arrested  the  defendant  again  on  the 
very  same  bonds,  only  laying  the  new  suit  in  Middlesex  instead 
of  Loudon ;  but  on  motion,  the  discontinuance  was  set  aside  on 
the  ground  that  it  was  a  trick,  and  an  unwarrantable  conduct  in 
the  attorney,  and  that  it  ought  not  to  have  the  intended  eflect. 

In  this  country,  in  our  own  courts,  the  law  is  established  in 
the  same  way.  In  Pollock  v.  Hall,  3  Yeates,  42,  Chief  Justice 
Shippen  says,  discontinuances  are  the  acts  of  the  court,  and 
subject  to  their  discretion.  And  in  Broom  v.  Fox,  2  Yeates, 
r*'^47l  ^^^'  *^^^  court  say,  *"  Regularly,  there  can  be  no  discon- 
L  J  tinuance  withput  leave  of  the  court."  In  addition  to 
these  cases,  there  are  others,  which,  by  a  parity  of  reason,  bear 
on  the  present  case.  In  Wikoff  v.  Perot,  1  Yeates,  38,  and 
Jackson  v.  Winchester,  2  Yeates,  629,  it  is  decided,  that  the 
defendant  cannot  withdraw  his  plea,  at  the  time  of  trial,  to  give 
him  the  benefit  of  the  conclusion  to  the  jury,  without  the  leave 
of  the  court;  or,  wherever  trouble  or  expense  has  been  incurred 
by  any  plea  of  the  defendant's,  the  court  will  not  give  leave  to 
retract  the  plea.  So,  in  M'Cullough  v.  M'Cullough,  1  Binn. 
214,  after  an  inquest  has  returned,  that  the  rents  and  profits 
will  pay  in  seven  years,  the  plaintiff  cannot  discontinue  his 
fieri  facias,  and  take  out  a  new  one,  without  leave  of  the  court. 
I  take  the  result  of  this  doctrine  to  be,  that  courts  will  protect 
their  suitors  from  vexation,  oppression,  or  an  undue  advantage, 
and  will  not  suffer  either  party  to  do  any  act  which  may  have 
this  tendency.  In  this  case,  the  advantage  the  plaintiffs  pro- 
posed to  themselves,  must  be  obvious  to  all,  for  by  discontinuing 
the  suit  in  Dauphin  county,  where  the  defendant  was  at  home, 
and  by  suing  him  immediately  for  the  same  cause  of  action  in 
Philadelphia,  where  the  plaintiffs  resided,  they  would,  of  course, 
get  rid  of  some  inconvenience,  expense,  and  trouble ;  to  all 
which,  the  defendant  would  necessarily  be  exposed,  if  com- 
390 


June.  1,  1829.]         OF   PP:NNSYLVANTA.  347 

[The  Mechanics'  Bank  of  the  city  and  county  of  Philadelphia  v.  Fisher.] 

pelled  to  attend  at  Philadelphia.  I  would  tlien  ask,  was  this 
not  a  contrivance,  or  an  attempt  on  the  part  of  the  plaintiffs, 
not  only  to  gain  an  advantage  qver  their  opponent,  but  was  it 
not  also  calculated  to  vex,  and  oppress,  and  expose  him  to  un- 
necessary expense  and  inconvenience?  Whenever,  therefore, 
it  appears  a  party  discontinues  one  suit,  for  the  purpose,  merely, 
of  instituting  another  for  the  same  cause  of  action  else\vliere, 
the  court,  on  motion,  will  set  aside  the  discontinuance,  and  re- 
instate the  former  suit,  and  subject  the  party  to  the  conse- 
quences of  his  own  acts.  Here  the  plaintiffs  had  chosen  the 
place  and  the  tribunal  where,  and  before  which,  to  sue  their 
debtor ;  having  done  so,  the  defendant,  on  his  part,  as  he  had  a 
right,  moved  in  the  suit,  and  filed  his  determination  of  record 
to  have  the  suit  decided  by  arbitrators,  of  which,  he  noticed  the 
plaintiffs ;  but,  before  he  had  returned  home  from  this  service, 
the  plaintiffs  gave  directions  to  discontinue  their  suit;  it  was 
discontinued  by  one  not  authorized,  and  without  the  permission 
of  the  court.  Under  these  circumstances,  I  am  not  disposed  to 
favour  the  discontinuance  of  a  suit.  The  rule  to  arbitrate  was 
not  stricken  from  the  record,  but  remained  on  the  same  when 
the  discontinuance  Avas  entered.  In  the  case  of  Landis  v.  Big- 
ler,  (I  believe  not  reported,)  in  which  a  rule  to  arbitrate  had 
been  taken  out,  but  never  acted  on,  but  still  remained  on  record, 
and  the  case  afterwards  tried,  and  a  verdict  and  judgment  ren- 
dered for  the  plaintiff,  this  court,  on  error,  reversed  the  judgment, 
declaring  the  law  to  be,  that  whilst  the  rule  to  arbitrate  remained, 
the  cause  was  out  of  court.  If  this  be  so,  and  the  discontinuance  of 
a  suit  be  the  act  of  the  court,  then  there  could  be  no  discontinuance 
in  the  suit  before  *us.  The  arbitrators  were  afterwards  r:tcq4o-| 
appointed  and  met,  (the  bank  having  been  previously  duly  L  -■ 
notified  of  the  time  and  place  of  their  meeting,)  made  an  award, 
and  filed  the  same  of  record,  according  to  law.  The  act  of 
assembly,  under  which  these  proceedings  were  had,  directs,  that 
the  report  of  the  arbitrators  shall  be  entered  on  the  docket  of 
.the  prothonotafy,  and  from  the  time  of  such  entry,  shall  have  the 
effect  of  a  judgment  against  the  party  against  whom  it  is  made, 
and  be  a  lien  on  the  party's  real  estate,  until  such  judgment  be 
reversed  on  an  appeal ;  and  the  appeal  is  to  be  made  within 
twenty  days  after  the  entry  of  the  award.  In  the  case  before 
us,  the  plaintiffs  did  not  appeal ;  but  on  the  8th  day  of  April, 
1829,  moved  the  Circuit  Court  to  strike  off  the  rule  of  refer- 
ence, and  the  subsequent  proceedings,  which  motion  the  court 
granted.  Upon  the  whole,  then,  this  court  is  of  opinion,  that 
where  it  appears  a  discontinuance  is  entered  with  a  view  to  vex 
and  oppress  a  defendant,  by  suing  him  elsewhere  for  the  same 
cause  of  action,  and  the  party,  under  such  circumstances,  ap- 

391 


348  SUPREME  COURT  [Lancaster, 

[The  Mechanics'  Bank  of  the  city  and  county  of  Philadelpliia  v.  FisJier.] 
plies  to  the  court  to  sanction  the  discontinuance  of  the  suit,  and 
set  aside  all  subsequent  proceedings  in  the  cause,  the  application 
should  not  succeed  unless  founded  in  justice  and  equity ;  and 
not,  as  in  the  present  case,  where  an  advantage  is  the  obvious 
and  necessary  consequence  to  the  plaintiffs,  and  great  exj)ense, 
besides  inconvenience  to  the  defendant.  The  judgment  is,  there- 
fore, to  be  reversed,  and  the  award  to  stand. 

Judgment  reversed. 

Cited  by  Counsel,  3  R.  323 ;  4  R.  379 ;  7  W.  496 ;  2  M.  100 ;  6  \V.  &  S.  148. 
493;  2  Barr,  440;  7  H.  58;  32  S.  306. 

Cited  by  the  (Jourt,  1  M.  90,  168 ;  and  commented  on  and  explained  in,  10 
W.  133.  ' 


[*349]  *[Lancaster,  June  1,  1829.] 

Geiger  against  Welsh  and  Others. 

IN   ERROR. 

It  is  the  duty  of  the  court  to  answer  fully  the  points  upon  which  they  are 
requested  by  counsel  to  charge  the  jury.  But  it  is  not  necessary  that  they 
should  answer  the  propositions  submitted,  in  the  very  words  of  tlie  proposi- 
tions.    It  is  enough  if  tlie  answer  be  sufficiently  full  to  be  understood. 

Nor  is  it  necessary,  where  the  same  proposition  is  repeated,  though  in  differ- 
ent words,  to  answer  every  repetition  of  it.    One  full  answer  is  enough. 

To  the  following  propositions: — 1.  That  a  conveyance,  made  with  a  view  to 
defeat  creditors,  is  fraudulent  and  void  ;  2.  That  a  debtor  cannot  give  his  prop- 
erty to  his  children  to  the  injury  of  his  creditor ;  .3.  That  a  debtor  cannot 
provide  for  the  maintenance  of  liimself  and  liis  wife  out  of  his  property  to 
the  injury  of  his  creditors;  and  every  instrument  of  writing,  or  conveyance, 
for  such  purpose,  is  void  as  to  creditors;  4.  That  if  the  jury  were  of  opinion, 
that  the  debtor  had  conveyed  his  property  to  his  children  for  the  purpose  of 
preventing  his  creditors  from  levying  upon  it,  the  conveyance  is  fraudulent 
and  void  as  to  creditors;  5.  That  if  the  conveyance  of  the  debtor  to  his  chil- 
dren was,  in  the  opinion  of  the  jury,  for  the  purpose  of  preventing  his  cred- 
itors from  levying  on  the  premises,  the  plaintili(who  was  a  purchaser  under  a 
judgment  against  the  debtor,  and  brought  ejectment  to  recover  the  premises),, 
was  entitled  to  recovery  in  this  suit — it  is  not  sufficient  to  answer,  "That  no 
act  whatever,  done  to  defraud  a  creditor,  or  creditors,  shall  be  of  any  eflect 
against  such  creditor  or  creditors." 

If  a  deed  be  made  by  a  parent  to  his  children,  on  condition,  that  the  grantee 
shall  support  the  grantor  for  life,  the  consideration  is  a  good  and  honest  one 
between  the  parties  themselves;  but,  if  it  be  made  with  a  view  to  hinder  or 
defeat  creditors,  it  is  fraudulent  and  void  as  respects  them. 

Writ  of  error  to  the  Court  of  Common  Pleas  of  Berks 
county. 

This  was  an  action  of  ejectment  for  two  pieces  of  land  in 
Union  township,  Berks  county,  brought  to  January  Term,  1827, 
by  the  plaintiff"  in  error  against  the  defendants  in  error. 
392 


Junel,182d.]         OF  PENNSYLVANIA.  349 

[Geiger  v.  Welsh  and  others  ] 

On  the  trial  of  the  cause,  tlic  case  was  briefly  this  : — In  1799, 
a  judgment  was  claimed  against  ^Morgan  Lewis,  under  whom 
both  parties  claimed.  A  fieri  facias  issued  on  the  judgment  to 
April  Term,  1799,  and  an  alias  venditioni  exponas  to  January 
Term,  1800,  and  no  further  proceedings  were  had  on  the  judg- 
ment until  the  year  1823.  On  the  16th  day  of  September, 
1818,  a  small  house  and  twenty  acres  of  land  were  devised  to 
Morgan  Lewis,  for  and  during  his  natural  life;  and  from,  and 
immediately  after  his  death,  to  his  children,  share  and  share 
alike.  On  the  23d  of  March,  1821,  the  debtor,  Morgan  Lewis, 
conveyed  and  released  his  life  estate  to  his  children,  on  condi- 
tion, that  they  should  support  him  and  his  wife  during  their 
lives.  The  children  took  possession  of  the  estate.  Au  alias 
fieri  facias  post  venditioni  exponas  issued  to  August  Term,  1823, 
for  the  residue  of  the  debt,  when  an  affidavit  of  defence  was 
made;  the  judgment  entered  in  1799  opened;  the  cause  re- 
ferred, and  in  the  year  182(3,  a  report,  or  award,  for  the  r^o-rK-i 
*plaintitf,  made  for  one  hundred  and  seventy-two  dol-  ^  ^ 
lars,  and  judgment  entered  thereon.  On  a  venditioni  exponas 
to  August  Term,  1826,  the  property  was  sold  to  Jacob  Geiger, 
the  plaintiff,  who,  on  the  14th  day  of  August,  1826,  received 
the  sheriff's  deed  for  the  same,  on  which  this  ejectment  was 
brought.  On  the  trial,  it  was  princij)ally  contended,  that  the 
deed  of  1821,  was  fraudulent  and  void,  as  the  grantor  was  in- 
debted at  the  time,  and  this  his  only  pri)pcrty. 

At  the  close  of  the  trial,  the  counsel  for  the  plaintiff  re- 
quested the  court  to  charge  the  jury  as  follows  : — 

"  1.  That  a  conveyance,  made  with  a  view  to  defraud  cred- 
itors, is  fraudulent  and  void. 

"  2,  That  a  debtor  cannot  give  his  property  to  his  children  to 
the  injury  of  his  creditors. 

"  3.  That  a  debtor  cannot  provide  for  the  maintenance  of 
himself  and  his  wife  out  of  his  property  to  the  injury  of  his 
creditors,  and  every  instrument  of  writing,  or  conveyance,  for 
such  purpose,  is  void  as  to  creditors. 

"4.  Tliat  if  the  jury  are  of  opinion,  tliat  INIorgan  Lewis  con- 
veyed his  property  to  his  children  for  the  ])ur]>ose  of  j)reventing 
his  creditors  from  levying  upon  it,  the  conveyance  is  fraudulent 
and  void  as  to  creditors. 

"  5.  That  if  the  conveyance  of  Morgan  Lewis  to  his  children 
was,  in  the  opinion  of  the  jury,  for  the  purpose  of  ])reventing 
his  creditors  from  levying  on  the  premises,  the  plaintiff  is  enti- 
tled to  recover  in  this  suit, 

"  6.  That  Morgan  Lewis  being  indebted  on  the  23d  day  of 
March,  1821,  Iris  deed  to  his  children,  of  that  date,  ^iven  in 

393 


350  SUPREME  COURT  {Lancastery 

[Geiger  v.  Welsh  and  others.] 

evidence  on  the  trial  of  this  cause,  is  fraudulent  and  Void  as  to 
his  creditors." 

The  court,  in  their  charge,  submitted  to  the  jury  the  facts  of 
the  case  for  tlieir  consideration  and  decision,  and  to  the  points 
of  law  above  stated,  answered  as  follows  : — 

"To  the  first,  second,  third,  fourth,  and  fifth  points,  the 
court  answered,  that  no  act  whatever,  done  to  defraud  a  cred- 
itor or  creditors,  shall  be  of  any  effect  against  such  creditor  or 
creditors." 

To  the  sixth  point,  the  court  answered,  "  That  Morgan  Lewis 
being  indebted  on  the  23d  day  of  March,  1821,  his  deed  to  liis 
children  of  that  date,  is  fraudulent  and  void  as  to  his  creditor 
or  creditors,  if  the  jury  believe  it  was  given  without  a  good  and 
valuable  consideration.  The  laws  of  Pennsylvania  do  not  mili- 
tate against  any  transaction  bona  fide,  and  where  there  is  no  im- 
agination of  fraud. 

To  this  charge,  the  plaintiff,  by  his  counsel,  excepted,  and  re- 
quested the  court  to  file  the  same,  agreeably  to  the  twenty-fifth 
section  of  the  act  of  the  24th  of  February,  1806.  The  verdict 
and  judgment  were  for  the  defendants. 

The  errors  assigned  on  the  record,  in  this  court,  were  four. 
P^rvp.-.-!   *"1.  That  the  court  did  not  charge  the  jury  on  the 
L         -I  points  insisted  upon  in  the  argument  of  the  cause,  and 
material  to  the  issue,  although  it  was  respectfully  requested  so 
to  do  by  the  counsel  for  the  plaintiff. 

"  2.  That  the  court  misdirected  the  jury  as  to  the  law  arising 
from  the  evidence. 

"  3.  That  the  court  submitted  the  construction  of  a  written 
instrument  to  the  jury,  instead  of  giving  to  it  its  legal  construc- 
tion, although  requested  so  to  do. 

"  4.  That  the  court  erred  in  stating  to  the  jury,  in  its 
charge,  that  the  facts  were  submitted  to  the  jury  for  their  con- 
sideration and  decision,  when  there  were  no  facts  in  the  case 
disputed,  and  the  verdict,  admitting  every  fact  given  in  evi- 
dence to  be  true,  should  have  been  for  the  plaintilij  according  to 
law." 

Biddle,  for  the  plaintiff  in  error,  contended,  1st.  That  Morgan 
Lewis  being  indebted  at  the  time  of  the  execution  of  the  deed 
to  his  children  of  the  23d  of  March,  1821,  and  having  no  other 
property  than  was  conveyed  by  that  instrument,  it  was  fraudu- 
lent an^l  void  as  against  creditors. 

2d.  That  the  proposition  submitted  to  the  court  had  not  been 
answered ;  or  if  answered,  they  had  been  answered  erroneously. 
He  supported  his  argument  by  citing  M'Allister  v.  Marshall,  6 
394 


June  1,  1829.]        OF  PENNSYLVANIA.  351 

[Geiger  v.  Welsh  and  others.] 

Binn.  338 ;  Thompson  v,  Dougherty,  12  Serg.  &  Rawle,  448 ; 
6  Conn.  67. 

a.  Smith  and  Darling,  for  the  defendants  in  error,  argued 
that  the  judgment  given  in  evidence,  was  no  lien  on  property 
acquired  after  its  entry ;  that  it  was  no  lien  against  the  pur- 
chasers, and  that  as  the  deed  in  question  was  made  in  1821,  the 
judgment  was  satisfied,  or  extinct  in  law,  as  against  heirs  or 
purchasers  ;  that  the  sheriff  had  sold  the  fee  simple,  and  not  the 
life  estate  of  the  debtor ;  and  that,  therefore,  his  deed  to  the 
plaintiff  was  void,  and  he  could  not  recover  under  it.  They 
denied  that  any  evidence  had  been  given  to  show  the  existence 
of  any  debt  at  the  time  of  the  execution  of  the  deed.  If  Lewis 
was  in  debt  at  all,  he  was  so  in  1826,  and  not  in  1821,  when  the 
deed  was  made.  The  facts  that  the  improvements  on  the  prop- 
perty  were  made  by  the  children,  and  that  they  took  possession, 
are  the  strongest  evidence,  that  all  was  done  bona  fide,  and  with- 
out fraud,  either  in  fact  or  in  law. 

The  points  submitted  to  the  court  were  all  substantially  and 
correctly  answered.  It  is  not  necessary  that  a  judge  should 
answer  each  point  separately.  Where  one  answer  is  applicable 
to  several  points,  one  is  sufficient.  They  cited  Hubley  v.  Van- 
horne,  7  Serg.  &  Rawle,  185 ;  Brown  v.  Caldwell,  10  Serg.  <fe 
Rawle,  114 ;  Cope  v.  Humphreys,  14  Serg.  &  Rawle,  15  ;  Mun- 
derbach  v.  Lutz's  Administrators,  14  Serg.  &  Rawle,  220. 

Smith,  J.,  (after  stating  the  case,)  delivered  the  opinion  of 
the  court. 

This  court  is  of  opinion,  that  the  judgment  of  the  Court  of 
Common  *.Pleas  must  be  reversed ;  and  regret  that  the  r^oKo-i 
points  submitted  were  not  fully  answered.  It  is  very  L  -• 
evident  to  my  mind,  that  the  court,  by  their  answers,  intended 
to  answer  the  points  fully,  but  unfortunately  did  not  do  so.  It 
has  been  declared  again  and  again,  and  is  a  well  settled  princi- 
ple of  law,  that  a  party  has  a  right  to  ask  the  opinion  of  the 
court  on  any  matter  of  law,  pertinent  to  the  matter  before  them, 
and  that  the  withholding  of  the  opinion  is  error.  In  this  case, 
the  court  could  have  readily,  briefly,  and  separately,  answered 
each  point  submitted.  In  regard  to  the  first  point,  an  affirma- 
tive answer,  or  one  in  the  words  of  the  proposition,  would  have 
been  full,  complete,  and  correct.  To  the  second  point,  a  repe- 
tition of  it  by  the  court,  affirming  the  proposition,  would  have 
formed  a  complete  and  sufficient  answer.  So  in  regard  to  the 
third  and  fourth  propositions.  I,  however,  by  no  means  say  that 
it  is  necessary  for  the  court  to  answer  propositions  submitted  for 
their  opinion,  in  the  very  words  of  the  propositions.      It  is 

395 


352  SUPREME  COURT  [Lancaster, 

[Geiger  v.  Welsh  and  others.] 

enough  if  the  answers  be  sufficiently  full  to  be  understood ; 
nor  is  it  necessary  where  the  same  proposition  is  rei)eated, 
though  in  different  words,  for  the  court  to  answer  every  repe- 
tition of  it;  one  full  answer  is  sufficient;  more  than  one  would 
evidently  be  impro])cr,  having  nothing  valuable  in  it,  unless  the 
swelling  of  the  record  by  a  repetition  of  the  same  answers  would 
be  considered  so.  But  the  court  did  not  so  answer  in  this  case ; 
one  answer  only  was  given  to  all  the  foregoing  points,  though 
they  materially  differed  from  each  other. 

Thej^i!/i  proposition  was  not  so  answered  as  to  convey  to  the 
understanding  of  the  jury  a  correct  idea  of  the  law.  The  answer 
of  the  court  (in  fact,  the  same  that  was  given  to  all  and  each  of 
the  preceding  points),  is,  "  that  no  act  whatever,  done  to  defraud 
a  creditor  or  creditors,  shall  be  of  any  eifect  against  such  cred- 
itor or  creditors."  Clearly,  this  is  not  a  sufficient  answer  to  the 
points  here  submitted.  In  the  abstract,  it  is  true  and  correct, 
that  no  act  whatever,  if  done  to  defraud  creditors,  can  be  of  any 
effect  against  creditors.  But  the  party  was  desirous  the  court 
should  inform  the  jury  explicitly,  that  if  the  conveyance  from 
Morgan  Lewis  to  his  children,  was  for  the  purpose  of  preventing 
his  creditors  from  levying  on  the  premises,  the  plaintiff  would 
be  entitled  to  recover  in  this  suit.  Nothing  was  said  by  the 
court,  in  their  answer,  to  lead  the  minds  of  the  jury  directly  to 
the  consideration  of  the  matter  contained  in  the  proposition  ; 
nor  do  the  court  in  their  charge,  instruct  the  jury,  as  I  think 
they  ought  to  have  done,  that  if  the  conveyance  was  for  the  pur- 
pose of  preventing  the  creditors  of  INIorgan  I^ewis  from  levying 
on  tiie  premises,  the  plaintiff  would  be  entitled  to  recover.  As 
to  this,  the  cotirt  remained  silent,  and  did  not  instruct  the  jury. 
But  to  the  sixth  and  last  point,  the  court  answers,  **that  Morgan 
Lewis  being  indebted,  on  the  23d  day  of  March,  1821,  his  deed 
to  his  children  of  that  date  is  fraudulent  and  void,  as  to  his  ci'ed- 
itor  or  creditors ;  and  had  the  court  8topi)ed  here,  the  answer 
would  have  been  full  and  correct ;  but  the  court  went  on  and 
p^oro-]  *added,  ''if  the  jury  believed  it  Avas  given  without  a 
*-  '  '  -■  good  and  valuable  consideration  ;"  and  in  this  the  court 
erred,  for  the  deed  would  have  been  fraudulent  and  void  as  to 
creditors,  if  made  to  his  children,  even  for  a  valuable  considera- 
tion. Under  certain  circumstances,  transactions,  honest  between 
parties  themselves,  often  become  fraudulent  in  relation  to  others. 
So,  in  this  case,  if  the  deed  was  given  to  the  children,  in  con- 
sideration, or  on  condition  of  su])porting  the  grantor  for  life, 
which  would  have  been,  as  to  tlieni,  a  valuable  consideration, 
and  honest  between  the  parties  themselves,  yet,  if  made  wilh  a 
view  to  hinder  or  defeat  creditors,  it  would  be  fraudulent  and 
void  in  relation  to  them.  And  so  the  jury  should  have  been 
396 


June  1,  1829.]       OF   PENNSYLVANIA.  353 

[Geiger  v.  Welsh  and  others.] 

instructed ;  but  the  court  told  the  jury,  it  was  fraudulent  and 
void.as  to  his  creditors,  if  they  believed  it  was  given  without  a 
good  aud  valuable  consideration,  which  evidently  tended  to 
mislead  the  jury ;  for  they  might  infer  from  the  direction,  that 
if  the  consideration  was  a  good  and  valuable  one,  the  deed  Avas 
uot  fraudulent  as  to  creditors,  and  that  a  valuable  consideration 
was  all  that  was  necessary  to  make  a  deed  effectual  under  any 
circumstances.  But  so  is  not  the  law.  I  think  the  court  should 
have  instructed  the  jury,  that  the  facts  given  in  evidence,  un- 
contradicted as  they  v/ere,  amounted  to  a  fraud  in  law,  which 
the  court  had  the  right  to  decide,  and  not  the  jury ;  here,  how- 
ever, the  court  referred  the  decision  to  the  jury.  In  the  opinion  of 
this  court,  the  plaintiff  in  error  has  sustained  the  errors  he 
assigned  in  the  record ;  and  the  judgment  of  the  Court  of 
Common  Pleas  is,  therefore,  to  be  reversed,  and  a  venire  facias 
de  novo  awarded. 

Judgment  reversed,  and  a  venire  fa/das  de  novo  awarded. 

Cited  by  Counsel,  3  Penn.  R.  162 ;  Bald.  3-54 ;  2  Wh.  324 ;  3  Wh.  410 ;  4 
Wh.  41 ;  o  Wh.  180 ;  6  W.  &  S.  188  ;  8  W.  &  S.  431 ;  2  Barr,  482  ;  8  Barr,  87, 
214;  9  n.  329;  10  11.  181;  3  C.  127;  6  C.  540;  9  C.  234;  1  Wright,  174; 
3  Wright,  505 ;  1  S.  381  ;  10  S.  435 ;  15  S.  360;  31  S.  179 ;  6  W.  N.  C.  455. 

Cited  by  the  Court,  4  H.  497 


[Lancastek,  June  3,  1829.] 

Myers  and  Another,  Assignees  of  Myers,  against  White. 

IN   ERROR. 

The  sheriff  is  not  justified  in  selling,  under  a  levari  facias,  grain  growing  on 
the  mortgaged  premises.  And  if  he  does  so,  tlie  party  to  whom  the  grain 
belongs,  may  maintain  an  action  of  trespass  quare  claii8um  fregit  against  the 
sherifli  though  not  in  actual  possession  of  the  land. 

Such  party  is  not  estopped  from  contesting  the  validity  of  the  sale,  in  con- 
sequence of  having  received  from  the  sheriff  the  balance  in  his  hands,  after 
payment  of  the  mortgage. 

Writ  of  error  to  the  District  Court  for  the  city  and  county 
of  Lancaster,  in  which  the  plaintiffs  in  error,  David  Myers  and 
Henry  Myers,  assignees  of  Peter  Myers,  brought  an  action  of 
trespass,  vi  et  armis  quare  clausuyn  fregit,  against  the  defendant 
in  error,  William  White,  Esq.,  high  sheriff  of  the  county  of 
Lancaster. 

*From  the  record  it  apjieared,  that  Peter  Myers,  the  r*oK/i-| 
assignor,  on  the  1st  of  Ai)ril,  1822,  executed  a  mort-  ^  'J 
gage  to  Jacob  Graybill  and  Jacob  Johns,  to  secure  the  ])ayment 
of  4,500  dollars,  which  was  recorded  on  the  10th  of  the  same 

397 


364  SUPREME  COURT  [iMncoiiter, 

[Myers  and  another,  Assignees  of  Myers,  v.  White.] 

month.  No  proceeding  was  had  npou  it  until  tlie  8th  of  Janu- 
ary, 1825,  when  a  scire  facias  was  issued,  to  which  defence  was 
taken  ;  and  on  the  21st  of  March,  1825,  an  award  of  arbitrators 
was  entered  in  favour  of  the  plaintiffs.  No  appeal  having  been 
entered,  a  scire  facias  issued  on  tiie  19th  of  April,  1825,  return- 
able to  August  Term,  by  virtue  of  which,  the  mortgaged  j)rem- 
ises  were  sold  on  the  18th  of  May,  1825.  In  the  meantime, 
viz.,  on  the  15th  of  January,  1825,  Peter  Myers  assigned  all  his 
property,  real,  personal,  and  mixed,  for  the  l^enefit  of  all  his 
creditors,  except  Graybill  and  Johns,  the  mortgagees.  The  trust 
was  accepted  by  the  assignees,  and  the  assignment  recorded  on 
the  day  of  its  date.  Upon  the  levari  facias,  issued  by  the  mort- 
gagees, their  counsel  indorsed  a  direction  to  the  sheriff  "  to  levy 
and  sell  the  mortgaged  premises,  together  with  the  grain  grow- 
ing thereon."  Upon  the  day  of  sale,  the  assignees  were  pre- 
sent on  the  premises,  and  gave  public  written  notice  of  the  as- 
signment ;  in  W'hich  they  stated,  that  they  had  let  the  planta- 
tion, &c.,  assigned  to  them  for  the  term  of  one  year  from  the  1st 
of  April,  then  last  past,  for  rent  taken  in  advance,  and  claimed 
to  hold  the  said  rent,  and  also,  the  grain  in  the  ground,  as  per- 
sonal estate,  agreeably  to  the  true  intent  and  meaning  of  the 
said  deed.  Notwithstanding  this  notice,  the  sheriff,  who  was 
indemnified,  sold  the  grain  with  the  mortgaged  premises,  and 
for  this  injury  the  present  action  was  brought.  One  of  the 
plaintiffs,  as  assignee  of  Peter  Myers,  received  the  balance 
which  remained  in  the  sheriff's  hands,  after  payment  of  the 
mortgage. 

On  the  trial,  seven  legal  propositions  were  submitted  to  the 
court  for  their  opinion,  by  the  counsel  for  the  plaintiffs,  and  nine 
by  the  counsel  for  the  defendant,  all  of  which,  however,  may  be 
resolved  into  three  questions. 

1.  Whether  or  not,  the  sheriff  was  justified  by  his  writ,  in 
selling  the  grain  growing  on  the  mortgaged  premises  ? 

2.  Whether  or  not,  the  plaintiffs  were  estopped  from  contest- 
ing the  validity  of  the  sale,  in  consequence  of  one  of  them  having 
received  from  the  sheriff  the  balance  of  the  money  in  his  hands? 

3.  Whether  or  not,  an  action  of  trespass  quare  clausum  fregit, 
could  be  maintained  by  the  plaintiffs  against  the  sheriff,  upon 
the  facts  proved  in  this  case? 

Under  the  direction  of  the  court,  the  jury  returned  a  verdict 
for  the  defendant,  and  judgment  having  been  rendered  upon  it, 
the  plaintiffs  removed  the  record  by  writ  of  error. 

Montgomery  and  Jenkins,  for  the  plaintiffs  in  error,  cited  Rus- 
ton  V.  Ruston,  2  Yeates,  67 ;  Wharf  v.  Howell,  5  Binn    504 ; 
398 


June  3,  1829.]         OF  PENNSYLVANIA.  354 

[Myers  and  another,  Assignees  of  Myers,  v.  White.] 

M'Call  V.  Lenox,  9  Serg.  &  Rawle,  309  ;  North  v.  Turner,  9 
Serg.  &  Rawle,  244. 

*  IF.  Hopkins,  contra,  cited,  1  Chitty  PI.  174;  Van-  r:j:oec-| 
home  V.  Frick,  6  Serg.  &  Rawle,  90 ;  Willing  v.  Brown,  L  -I 
7  Serg.  &  Rawle,  467;  M'Call  t\  Lenox,  9  Serg.  &  Rawle,  311, 
314 ;  2  Johns.  Ch.  Rep.  442 ;  Patterson  v.  Swan,  9  Serg.  & 
Rawle,  16;  Floyd  v.  Browne,  ante,  page  *121 ;  Powel  on  Mort. 
Ch.  4,  page  80;  17  Mass.  Rep.  299;  15  Mass.  Rep.  280;  13 
Mass.  Rep.  229;  11  Mass.  Rep.  125;  Id.  30;  1  Doug.  81,  82; 
Lyle  V.  Ducomb,  5  Binn.  592 ;  Smith  v.  Shuler,  12  Serg.  & 
Rawle,  242 ;  3  Mass.  Rep.  138. 

The  opinion  of  the  court  was  delivered  by 

Rogers,  J. — Peter  Myers,  on  the  1st  day  of  April,  1822, 
.mortgaged  a  tract  of  land  to  Johns  and  Graybill,  who,  on  the 
8th  of  January,  1825,  sued  out  a  scire  facias  on  the  mortgage. 
On  the  15th  of  January,  1825,  Myers  and  wife  assigned  the 
mortgaged  premises  to  David  and  Henry  Myers,  the  plaintiffs. 
At  the  time  of  the  assignment,  there  was  a  crop  in  the  ground, 
which  passed  to  the  assignees.  The  assignees  leased  the  prop- 
erty to  Peter  Myers,  reserving,  as  I  understand,  the  crop 
which  was  levied  on  by  the  sheriff.  The  mortgagees  having  ob- 
tained judgment  on  the  scire  facias,  issued  a  levari  facias  t'^  the 
August  Term,  1825,  on  which  w^as  this  indorsement:  "Sheriff 
will  levy  the  mortgaged  premises,  together  with  the  grain  grow- 
ing thereon."  The  principal  point  in  the  cause  is.  Whether  the 
sheriff  be  justified  by  his  writ,  for  the  levy  and  sale  of  the  grain 
growing  on  the  mortgaged  premises.  It  is  contended,  by  the 
counsel  for  the  defendant  in  error,  that  all  leases,  or  other 
interests  in  lands,  made  or  conveyed  by  the  mortgagor  subse- 
quent to  the  mortgage,  though  before  forfeiture,  are  void  against 
the  mortgagee :  That  as  to  him,  the  tenants  under  such  leases, 
or  persons  claiming  such  interests,  may  be  considered  as  tres- 
passers, disseisors,  and  wrong-doers :  That  the  mortgagee  on 
notice,  becomes  entitled  to  the  rent  of  the  premises  mortgaged 
(if  let),  from  the  time  of  executing  the  conveyance ;  for  the 
rents  and  profits  are  liable  to  the  deirt,  as  well  as  the  premises 
themselves.  And  this  without  doubt,  is  the  law  of  England, 
and  results  from  the  well-settled  principle,  that  the^estate  of  the 
mortgagee,  until  forfeiture,  still  continues  as  at  common  law 
before  the  interference  of  the  Courts  of  Equity.  The  mort- 
gagee is  entitled  to  an  estate  in  the  land  as  tenant  in  mortgage, 
in  fee,  or  for  a  term  of  years,  as  the  case  may  be.  There  has 
been  an  essential  departure  from  the  law  of  England  in  Penn- 
sylvania, for  the  mortgagee  has  no  estate,  property,  or  interest 

399 


355  SUPREME  COURT  [Lancaster, 

[Myers  nnd  another,  Assignees  of  Myers,  v.  "White  ] 

in  the  land,  until  lu;  takes  possession  of  the  property.  (Vide 
Riokert  and  Reed  v.  Madeira,  ruled  at  this  term.*)  Nor  lias  it, 
as  I  believe,  ever  been  understood  that  such  a  privity  exists,  as 
that  a  mortgagee  can  compel  the  tenant  of  the  mortgagor  to 
pay  him  the  rent,  whether  the  lease  was  executed  either  before 
or  after  the  mortgage.  Nor  has  it  heretofore  been  considered, 
r*o^n-\  that  as  *to  the  mortgagee,  the  tenants  under  leases 
L  -I  from  the  mortgagor,  fairly  and  bona  fide  made,  can  be 
treated  as  trespassers.  In  Pennsylvania,  a  mortgage,  as  haS 
been  held  in  repeated  decisions,  although  in  form  an  absolute 
conveyance,  is  in  substance  but  the  security  for  a  debt.  The 
mortgagor  is  the  owner  of  the  land,  with  the  same  power  over 
it  as  any  other  tenant  in  fee,  with  incumbrances,  or  liens,  upon 
the  property.  In  this  case,  the  mortgagees  have  treated  it  as  a 
]>ledge  for  the  debt,  by  proceeding  under  the  act  of  assembly, 
directing  the  sale  of  the  mortgaged  premises.  This  is  a  pro- 
ceeding in  rem,  it  is  true,  and  must  necessarily  be  so,  where  the 
remedy  is  on  the  mortgage  itself,  and  not  on  tlie  bond,  which, 
for  greater  security,  and  as  giving  a  more  extensive  remedy,  is 
usually  taken.  In  deciding  the  question,  I  throw  out  of  view 
the  indorsement  on  the  writ,  for  that  cannot  enlarge  the  power 
of  the  sheriff.  He  must  rest  his  defence  on  the  writ  itself;  and 
in  that,  he  is  commanded  to  sell  the  premises  mortgaged,  with- 
out any  authority  whatever  to  dispose  of  the  grain.  As  there 
is  no  difference  in  this  respect  between  a  judgment  and  mort- 
gage creditor,  this  case  has  been  virtually  decided  in  Hambach 
V.  Yeates,  not  yet  reported,  in  which  it  was  held,  that  grain 
growing  in  the  ground,  is  personal  property,  and  might  be  levied 
on  and  sold  as  such ;  and  that  it  clid  not  pass  by  a  sale  to  the 
sheriff's  vendee.  Peter  Myers,  before  judgment  on  the  scire 
facias,  had  parted  with  his  interest  in  the  crop.  At  the  time 
of  the  sale,  all  his  right  was  vested  in  his  assignees  for  the 
benefit  of  his  creditors. 

When  this  cause  was  first  broken,  I  was  of  opinion,  with  the 
counsel  for  the  defendant  in  error,  that  the  action  had  been 
misconceived ;  but  upon  further  investigation,  as  the  assignees 
had  reserved  the  right  to  the  crop,  I  cannot  distinguish  this  in 
principle,  from  Stultz  v.  Dickey,  5  Binn.  285.  A  tenant  enti- 
tled to  the  waygoing  crop,  who  enters  and  warns  a  third  person 
against  cutting  it,  may  maintain  trespass  quare  clansum  fregit, 
against  a  wrong-doer,  notwithstanding  he  had,  previously  to  the 
trespass,  given  up  to  his  landlord  possession  of  the  farm,  in  a 
part  of  which  the  crop  was  growing. 

It  has  also  been  contended,  that  inasmuch  as  Henry  Myers, 

*  Ante,  page  *326. 

400 


Ju-m  3,  J  829.]        OF  PENNSYLVANIA.  356 

[Myers  and  another,  Assignees  of  Myers,  v.  White.] 

one  of  the  plaintiffs,  received  the  balance  of  the  money,  the  as- 
signees are  estopped  from  contesting  the  validity  of  the  sale. 
In  this  I  cannot  perceive  any  inconsistency.  It  was  the  balance 
of  the  money  after  the  payment  of  the  mortgage,  to  which  Johns 
and  Graybill  pretended  to  have  no  right,  nor  had  the  sheriff 
any  claim.  It  undoubtedly  belonged  to  the  assignees,  and  the 
receipt  indicates  no  intention  to  legalize  the  illegal  seizure  of 
the  grain.  In  order  to  amount  to  an  estoppel,  it  should  be  in- 
consistent with  the  action,  which  in  the  opinion  of  the  court,  it 
was  not.  Its  effect  will  be,  to  lessen  the  damages,  if  any  shall 
be  recovered  on  another  trial  of  tlie  cause. 

Judgment  reversed,  and  a  venire  facias  de  novo  awarded. 

Cited  by  Counsel,  3  Penn.  K.  500  ;  3  Wh.  463 ;  2  W.  &  S.  269  ;  4  H.  180  ; 
9  C.  257  ;  2  S.  360 ;  22  S.  459  ;  7  O.  519  ;  11  W.  N.  C.  68. 

Cited  by  the  Court,  1  Penn.  R.  473 ;  3  W.  406 ;  1  H.  278 ;  4  H.  178 ;  3  C. 
510;  5C.  68;  9  N.  219 ;  7  O.520;  s.  c  13  W.  N.  C.  430. 

Mr.  Justice  Lowrie,  in  Bittinger  v.  Baker,  5  C.  68,  declares  this  case  to  be 
unsound.  In  Hershey  v.  Metzgar,  9  N.  219,  the  remark  of  Mr.  Justice  Lowrie 
was  characterized  a  dictum  and  tlie  principal  case  distinguished  from  those 
supposed  to  be  in  conflict  with  it.  It  was  there  said  that  the  test  is  whether 
there  has  been  a  severance  of  the  growing  grain.  The  question  again  came 
up  in  Long  v.  Seavers,  7  O.  520 ;  s.  c.  13  W.  X.  C.  428,  and  was  decided  under 
the  test  just  given.  The  numerous  and  contradictory  authorities  are  discussed 
at  some  length  in  Reed  on  the  Statute  of  Frauds,  ^  708  and  note  n. 


*[Lancaster,  June  3,  1829.]  [*357] 

M'Lenachan    and    Wife,    Administrators    of    Bucher, 
against  the  Commonwealth,  for  the  use  of  Bucher, 

LN  ERROR. 

The  confirmation  of  an  administration  account,  like  any  other  decree  of  the 
Orphans'  Court,  cannot  be  re-examined  but  by  way  of  review. 

But  the  parties  may  so  modify  the  balance  as  to  render  it  necessary  to  un- 
ravel the  account,  to  give  effect  to  their  agreement. 

A  release  by  the  persons  beneficially  interested  to  one  administrator,  of  everv- 
thing  but  certain  parts  of  the  estate  in  the  hands  of  the  other  administrator, 
which  are  specially  excepted,  is  valid,  and  is  to  be  carried  into  effect  according 
to  the  intention  of  the  parties ;  and  it  is  competent  to  the  parties  interested, 
to  give  extrinsic  evidence  in  relation  to  the  parts  excepted,  notwithstanding 
the  c(jnfirmation  of  the  administration  account. 

Writ  of  error  to  the  District  Court  for  the  city  and  county 
of  Lancaster,  on  which  the  record  was  returned,  accompanied 
by  several  bills  of  exceptions,  tendered  by  the  defendants  below, 
who  were  plaintiffs  in  error. 

VOL.  I.— 26  401 


367  SUPREME  COURT  [Lancaster, 

[M'Lenachan  and  Wife,  Administrators  of  Bucher,  r.  The  Commonwealth,  for 
the  use  of  Bucher.] 

From  the  record  it  appeared,  that  at  June  Term,  1824,  a 
judgment  was  obtained  in  the  name  of  the  Commonwealth  against 
James  M'Leiiachan  and  Ann,  his  wife,  administrators  of  Martin 
Bucher,  deceased,  on  their  administration  bond.  On  this  judg- 
ment a  scire  facias  issued  for  the  use  of  Martin  Bucher,  the 
plaintiff,  to  recover  his  distributive  share  of  the  estate  of  Martin 
Bucher,  the  intestate.  At  the  same  time,  similar  writs  issued 
for  the  use  of  Mary  and  Christian  Bucher,  who  sued  by  their 
guardians,  and  of  William  Ralston,  administrator  of  Elizabeth 
Bucher,  deceased. 

When  the  cause  was  called  up  for  trial,  and  before  the  jury 
was  sworn,  the  defendants  moved  to  amend  their  pleadings,  by 
adding  the  plea  of  a  release,  which  was  drawn  up  at  large,  and 
filed.  The  plaintiif  objected  to  the  plea  being  received,  but 
the  court  overruled  the  objection.  To  this  plea  the  plaintiff 
replied,  that  there  was  no  release  which  released  the  plaintiflf's 
cause  of  action  in  this  suit ;  and  further,  that  the  supposed 
release  was  obtained  by  fraud,  misrepresentation,  and  undue 
influence. 

On  the  trial,  the  plaintiff  offered  to  prove  what  articles  of 
personal  property,  belonging  to  the  intestate,  had  come  into 
the  hands  of  Mrs.  M'Lenachan.  The  defendants  objected  to 
the  evidence,  and  in  support  of  their  objection,  produced  the 
administration  account  of  John  Good  and  Ann  Bucher,  (nov/ 
Ann  M'Lenachan,)  administrators  of  Martin  Bucher,  deceased, 
passed  in  the  Orphans'  Court  on  the  31st  of  May,  1819.  But 
the  court  admitted  the  evidence  offered  by  the  plaintiff,  and, 
at  the  request  of  the  defendants'  counsel,  sealed  a  bill  of  excep- 
tions. 

i-^orQ-i  *The  plaintiff  having  given  the  evidence  stated  above, 
■-  -"  the  defendants  gave  in  evidence  a  release,  bearing  date 
the  19th  of  September,  1825,  from  Martin  Bucher  (the  plaintiff,) 
and  others,  to  John  Good,  in  which  they  acknowledged  to  have 
respectively  received  from  him,  as  acting  administrator  of  the 
estate  of  Martin  Bucher,  deceased,  the  several  sums  of  money 
therein  specified,  in  full  of  their  several  and  respective  shares  of 
the  estate  of  the  intestate,  "  Agreeably  to  the  supplementary 
account  of  the  said  John  Good,  as  acting  administrator  of  the 
said  intestate's  estates,  this  day  filed  of  record  in  the  office  of  the 
register  of  wills,  &c.,  in  and  for  the  said  county  of  Lancaster, 
and  advertised  for  presentation  to  the  Orphans'  Court  of  the  said 
county,  on  the  third  Monday  in  December  next,  and  all  claims 
and  demands  of  what  nature  or  kind  soever,  the  same  may  be  by 
us,  or  either  of  us,  against  him,  the  said  John  Good,  for,  or  on 
account  of  the  estate,  real  and  personal,  or' the  proceeds  of  the 
402 


JuneS,lS29.]        OF   PEXXSYLVANTA.  358 

[M'Lenachan  and  Wife,  Administrators  of  Bucher,  v.  The  Commonwealth,  for 
the  use  of  Bucher.] 

estate,  real  and  personal,  of  the  said  Martin  Bucher,  deceased^  or 
any  part  thereof,  save  and  excepting,  and  always  reserving 
our  several  and  respective  parts,  shares,  and  proportions  of  the 
amount  of  rents  due  by  James  M'Lenachan,  and  Ann,  his  wife, 
late  Ann  Bucher,  widow  and  relict  of  the  said  Martin  Bucher, 
deceased,  for  a  certain  farm  in  Dunmore  township  aforesaid,  late 
part  of  the  real  estate  of  the  said  intestate,  and  purchased  by 
him  at  public  sale  from  the  administrators  of  the  said  decedent's 
estate.  Also,  excepting  and  reserving  our  respective  shares  in 
the  amount  of  a  distillery,  purchased  by  the  said  James  M'Le- 
nachan, and  Ann,  his  wife,  or  one  of  them,  or  kept  by  her  at 
the  appraised  value,  the  amount  of  which  is  credited  in  the  for- 
mer account  settled  on  the  said  decedent's  estate :  and  also, 
excepting  and  reserving  our  distributive  shares  in  the  balance 
of  the  purchase-money  of  said  farm,  purchased  by  the  said  James 
M'Lenachan,  which  claims  are  not  hereby  released  ;  and,  there- 
fore, we  do  hereby  acquit,  exonerate,  release,  and  forever  dis- 
charge the  said  John  Good,  his  heirs,  executors  and  administra- 
tors of,  and  from  all  actions,  suits,  claims,  and  demands  what- 
soever, for,  or  on  account  of  the  estate  of  the  said  Martin  Bucher, 
deceased,  or  any  part  thereof;  and  hereby  agree  to  make  no 
objections  to  the  passing  of  said  supplementary  account  before 
the  Orphans'  Court  of  said  county,  being  fully  satisfied  and  con- 
tent therewith."  The  defendants  also  gave  in  evidence  the 
administration  account  of  John  Good  and  Ann  Bucher,  passed 
in  the  Orphans'  Court  on  the  31st  of  May,  1819,  and  the  supple- 
mental account  referred  to  in  the  release.  After  the  evidence 
thus  given  by  the  defendants,  the  plaintiff  offered  to  prove,  that 
the  articles  called  in  the  inventory  the  distillery,  came  into  the 
hands  of  Ann  Bucher,  the  defendant.  The  evidence  was  ob- 
jected to  by  tlie  defendants'  counsel,  but  the  court  permitted  it 
to  be  given,  and  sealed  another  bill  of  exceptions. 

*The  plaintiff  afterwards  offered  to  prove  by  George  r^o-qn 
Koons,  that  the  sum  of  one  hundred  and  eighty-one  dol-  L  '  -I 
lars,  credited  as  paid  to  him  in  the  administration  account  of 
John  Good  and  Ann  Bucher,  allowed  by  the  Orphans'  Court  on 
the  31st  of  May,  1819,  never  had  been  paid  to  him.  This 
evidence  was  likewise  objected  to  by  the  counsel  for  the  defend- 
ants, but  admitted  by  the  court,  who  sealed  a  third  bill  of  ex- 
ceptions. 

The  defendants  then  offered  in  evidence  the  account  of  James 
M'Lenachan,  and  Ann,  his  wife,  for  the  maintenance,  &c.,  of 
the  minor  children  of  Martin  Bucher,  deceased,  which  had  been 
allowed  by  the  Orphans'  Court  of  Lancaster  county  after  notice 
and  full  hearing  of  the  guardians  of  said  children.    The  evidence 

403 


359  SUPREME   COURT  [Lancaster, 

[M'Lenachan  and  Wife,  Administrators  of  Bncher,  r.  The  Commonwealth,  for 
the  use  of  Bucher  ] 

being  objected  to  by  the  plaintiff's  counsel,  the  court  rejected  it, 
upon  which  a  fourth  exception  was  taken. 

After  the  evidence  stated  in  the  four  preceding  bills  of  excep- 
tions had  been  given,  and  after  George  Koons  had  testified, 
that  Martin  Bucher  was  not  indebted  to  him  at  the  time  of  his 
death  ;  that  he  did  not  know  that  he  ever  got  any  money  from 
the  administrators ;  that  Bucher  paid  him  about  a  year  l^efore 
liis  death,  and  had  given  other  evidence  not  material ;  and  after 
the  defendants  had  read  in  evidence  a  receipt,  dated  the  4th  of 
April,  1815,  given  to  Ann  Bucher,  one  of  the  administrators  of 
Martin  Bucher,  deceased,  and  signed  by  the  said  George  Koons, 
for  one  hundred  and  eighty-one  dollars,  the  plaintiff  offered  to 
prove  by  George  Koons,  that  he  could  not  read  English,  and 
that  he  lived  several  years  with  Ann  Bucher  after  her  husband's 
death,  for  which  he  was  entitled  to  pay.  To  the  admission  of 
this  evidence  the  defendants'  counsel  objected,  but  the  court 
overruled  the  objection,  and  this  was  the  ground  of  the  fifth  bill 
of  exceptions. 

The  evidence  of  both  sides  being  closed,  the  following  points 
were  submitted  to  the  court,  on  which  they  were  requested  to 
charge  the  jury. 

The  plaintiff's  points  : — 

"  1.  That  the  writing  produced  by  the  defendants,  dated  the 
19th  of  September,  1825,  purporting  to  be  a  release,  is  not  a 
full  release ;  nor  does  it  bar  the  plaintiff's  right  to  recover  his 
distributive  share  of,  and  in  the  value  of  tM^o  stills,  hogsheads, 
tubs,  &c.,  appraised  in  the  inventory  at  three  hundred  dollars, 
nor  does  it  support  the  plea  of  a  release. 

"  2.  That  Ann  M'Lenachan,  formerly  Ann  Bucher,  having 
retained  in  her  possession  the  said  two  stills,  hogsheads,  tubs, 
&c.,  and  used  the  same  for  some  years,  is  bound  to  answer  to  the 
distributees  the  whole  amount  at  which  the  same  were  appraised 
in  the  inventory. 

"  3.  That  the  affirmation  of  John  Good  and  Ann  Bucher  is 
no  evidence  of  the  payment  of  one  hundred  and  eighty-one 
r*'^fiO"l  ^<^^l^'''s  to  *George  Koons,  which  is  introduced  into  the 
L         -J  first  administration  account." 

The  defendants'  points  : — 

"  1.  That  the  only  inquiry  in  these  suits  is,  respecting  the 
personal  property  of  the  deceased,  and  the  jury  cannot  enter 
into  any  inquiry  relative  to  the  real  estate,  or  the  rents  of  the 
real  estate. 

"  2.  That  the  release  pleaded,  operates  as  a  complete  bar  to 
the  further  maintenance  of  these  actions ;  and  the  verdict  must, 
therefore,  be  for  the  defendants." 
404 


June  S,lS2d.']        OF   PEXXSYLA^ANIA.  360 

[M'Lenachan  and  Wife,  Administrators  of  Bucher,  v.  The  Commonwealth,  for 
the  use  of  Bucher.] 

The  charge  of  the  court  to  the  foregoing  points  was  as  fol- 
lows : — 

"  The  court  answers  the  first  point  of  the  defendants  in  the 
affirmative.  In  answer  to  the  first  point  of  the  plaintiff,  and 
the  second  point  of  the  defendants,  the  a)urt  say,  that  tlie  re- 
leases given  in  evidence  in  these  cases,  if  fairly  obtained,  are  a 
release  and  discharge  in  law,  of  the  defendants  from  all  demands 
on  the  part  of  the  plaintiffs  for  any  part  of  the  personal  estate, 
except  the  articles  called  in  the  appraisement,  and  in  the  re- 
lease, the  distillery ;  which  are  expressly  exempted  out  of  the 
operation  of  the  release.  It  is  the  opinion  of  the  court,  that 
the  exceptions  contained  in  the  releases,  are  exceptions  out  of 
the  releasing  covenants,  and  that  they  do  not  discharge  the  de- 
fendants from  any  suit  for  any  matter  contained  in  the  said 
saving  and  excepting  clause.  In  answer  to  the  plaintiff's 
second  point,  the  court  say,  that  the  inventory  filed  by  the 
defendant  and  her  co-adrainistrator,  John  Good,  is  very  high 
and  satisfactory  evidence,  that  all  the  goods  mentioned  therein, 
came  to  the  hands  of  the  administrators,  and  that  the  valuation 
set  upon  them  is  a  fair  and  just  one.  But  the  court  will  not 
say,  that  the  inventory  is  absolute,  conclusive,  and  incontestable 
evidence  of  the  value  of  the  property.  If  the  jury  believe  the 
evidence,  and  are  of  opinion  that  the  defendant  has  not  already 
accounted  for  the  value  of  the  articles  mentioned,  called  the 
distillery,  she  is  bound  to  answer  for  it  now  to  the  several 
plaintiffs  in  these  causes,  according  to  their  several  distributive 
shares  thereof." 

To  this  charge  the  counsel  for  the  defendants  excepted. 

Champneys,  for  the  plaintiff  in  error,  cited,  3  Stark.  1751 ; 
Dasher  v.  Leinaweaver,  3  Serg.  &  Rawle,  200 ;  Archb.  PI.  353, 
354;  Doug.  106;  1  Salk.  178;  6  Johns.  248. 

Hopkins,  for  the  defendants  in  error,  cited,  Harriot  v.  Davey, 
1  Dall.  164 ;  Kohr  v.  Fedderhaff,  4  Serg.  &  Rawle,  248 ;  6  Johns. 
Ch.  Rep.  242. 

The  opinion  of  the  court  was  delivered  by 

Gibson,  C.  J. — In  M'Fadden  v.  Geddis,  decided  at  the  last 
term  at  this  place,  it  was  determined,  against  the  current  of  the 
former  decisions,  that  the  confirmation  of  an  administration  ac- 
count is  conclusive  on  the  parties  in  an  action  at  law ;  and 
although  I  felt  *myself  bound  by  the  authorities  to  dis-  r^op-iT 
sent,  I  should  be  sorry  to  see  the  decision  disturbed  •-         J 

406 


361  SUPREME   COUHT  [Lanmster, 

[M'Lenachan  and  Wife,  Administrators  of  Bucher,  v.  The  Commonwealth,  for 
the  use  of  Bucher.] 

now,  even  if  it  were  wrong  on  principle,  which  I  do  not  admit. 
I  take  it,  therefore,  to  be  settled,  that  the  confirmation  of  an 
administration  account,  like  any  other  decree  of  the  Orphans' 
Court,  cannot  be  re-examined  but  by  way  of  review.  But  may 
not  the  parties  so  modify  the  balance  as  to  render  it  necessary 
to  unravel  the  account,  to  give  effect  to  their  agreement  ?  Here 
the  persons  beneficially  entitled,  had  executed  to  one  adminis- 
trator, a  release  of  everything  but  certain  items,  or  constituent 
parts  of  the  estate,  which  were  in  the  hands  of  the  other  ad- 
ministrator, and  these  were  specially  excepted.  Now,  such  a 
release  is  valid  for  the  same  reason  that  a  release  of  part  of 
a  verdict  or  judgment  is  valid.  If  then,  it  be  competent  to 
those  who  have  released  their  interest  in  part  of  an  estate,  to 
reserve  the  benefit  of  what  may  be  decreed  to  them  in  re- 
spect of  the  rest,  it  must  also  be  competent  to  them  to  show, 
by  extrinsic  evidence,  what  those  parts  were.  Here  it  was 
not  proposed  to  open  the  decree,  or  vary  the  balance,  but  to 
show  what  part  of  the  balance  had  not  been  released ;  and  this 
was  in  no  respect  inconsistent  with  the  conclusiveness  of  the 
account. 

The  release,  in  general  terms,  exonerated  the  defendants'  co- 
administrator from  "  all  actions,  claims,  and  demands  whatever, 
for,  or  on  account  of  the  estate  of  the  said  Martin  Bucher,  or 
any  part  thereof;  and  hence,  it  is  contended,  that  the  adminis- 
trators being  jointly  and  severally  bound,  the  bond  is  discharged 
as  to  both.  At  law,  the  release  of  one  joint  and  several  obligor, 
undoubtedly  discharges  all ;  but  equity  restrains  all  general  and 
sweeping  expressions  which  are  inconsistent  with  the  actual  in- 
tention. Of  this,  Kirby  v.  Taylor,  6  Johns.  Ch.  242,  is  a  re- 
markable instance,  which,  in  its  circumstances,  bear  some 
resemblance  to  the  case  at  bar.  There  it  was  held,  that  the 
release  of  one  of  three  guardians,  reserving  the  responsibility 
of  a  surety  in  the  guardianship  bond,  did  not  discharge  the 
surety  as  to  the  others.  Now  what  was  the  intention  here  ? 
Clearly,  as  regards  particular  parts  of  the  estate,  to  reserve  the 
liability  of  the  releasee  himself.  Why  insert  an  express  reser- 
vation of  the  defendant's  liability  in  a  deed  to  which  he  is  not 
a  party,  and  the  operative  words  of  which,  do  not  extend  to 
him  ?  The  instrument  was  evidently  drawn  by  a  layman  ;  and 
had  the  parties  known  of  the  rule  by  which  the  release  of  one 
obligor  discharges  the  other,  they  would  also  have  known  that 
no  reservation  of  theirs  could  frustrate  it.  The  intention  un- 
doubtedly was,  notwithstanding  the  sweeping  words  in  conclu- 
sion, to  reserve  the  excepted  parts  of  the  estate  entirely  from 

406 


June  3, 1829.]        OF  PENNSYLVANIA.  361 

[M'Lenachan  aiid  Wife,  Administrators  of  Bucher,  v.  The  Commonwealtli,  for 
the  use  of  Bucher.] 

the  release ;  and  that  being  clear,  neither  the  defendant  nor  the 
other  administrator,  was  discharged. 

Judgment  affirmed. 

Cited  by  Counsel,  2  Penn.  R.  522 ;  1  Wh.  344 ;  10  W.  300 ;  4  W.  &  S.  425 ; 
6  W.  &  S.  195 ;  4  Wr.  308 ;  12  Wr.  173 ;  20  S.  433 ;  3  O.  128  ;  s.  c.  11  W.  N.  C. 
555 

Cited  by  the  Court,  4  E.  176  ;  2  W.  261 ;  8  Barr,  268 ;  10  Barr,  242 ;  20  S. 

428. 


♦[Lancaster,  June  3, 1829.]  [*362] 

Reitenbach  agaimt  Keitenbach. 

IK   ERROR, 
t 

Where  the  question  was  upon  the  validityof  a  judgment  entered  under  war- 
rant of  attorney,  upon  a  bond  given  by  a  father  to  his  son,  soon  after  the  son 
became  of  age,  and  when  the  father  was  about  to  become  insolvent,  the  alleged 
consideration  of  which  was,  services  rendered  by  the  son  to  the  father :  hdd, 
that  it  wa-s  competent  to  the  creditors  of  the  father,  on  the  application  of  whom 
the  judgment  had  been  opened,  for  the  purpose  of  letting  them  mto  a  defence, 
to  show,  that  on  a  sale  by  the  sheriff  of  the  father's  goods,  the  son  had  claimed, 
and  retained  as  his  own  property,  a  number  of  the  articles  levied  on. 

A  combination  between  the  father  and  tlie  son,  to  defraud  the  creditors  of 
the  father  having  been  proved,  held,  that  it  was  competent  to  the  creditors  to 
give  in  evidence  declarations  by  the  father,  in  the  absence  of  the  son,  that  the 
bond  was  given  for  the  sole  purpose  of  keeping  off  creditoi^  and  that  it  was 
with  consideration. 

Writ  of  error  to  the  Court  of  Common  Pleas  of  Lancaster 
county. 

The  trial  in  the  court  below  was  between  Daniel  Reitenbach, 
plaintiff,  and  Peter  Reitenbach,  defendant.  It  was  to  test  the 
validity  of  a  judgment  entered  on  a  bond  and  warrant  of  attor- 
ney, which  Peter,  when  he  was  about  to  become  insolvent,  had 
given  to  Daniel  his  son.  This  judgment  having  been  opened 
on  the  application  of  Peter's  creditors,  who  carried  on  the  de- 
fence in  Peter's  name,  and  who  alleged  fraud  between  the  father 
and  son  ;  they  proved  by  a  witness,  some  declarations  by  Peter, 
made  in  Daniel's  presence  and  hearing,  and  without  any  contra- 
diction by  Daniel,  that  the  judgment  was  given  to  keep  the 
creditors  off;  that  no  one  could  push,  and  that  it  would  be  a 
scare  crow.  The  creditors  next  proposed  to  prove,  by  the  same 
witness,  other  declarations  by  Peter,  that  the  sole  purpose  of 
the  bond  was  to  keep  off  creditors,  and  that  it  was  without  con- 
sideration. But  these  declarations  not  appearing  to  have  been 
made  in  the  presence  of  Daniel,  and  not  being  proved  to  have 
been  assented  to  by  him,  were,  therefore,  objected  to  on  the 

407 


362  SUPREME  COURT  [LancaMer^ 

[Beitenbach  v.  Beitenbach.] 

part  of  Daniel,  and  overruled  by  the  court;  which  formed  the 
ground  of  the  first  bill  of  exceptions.  2.  The  creditors  then 
offered  to  prove,  that  on  a  sale  by  the  sheriff  of  the  goods  of 
Peter,  the  father,  Daniel,  the  son,  claimed,  and  retained  as  his 
own  property,  a  number  of  articles  which  had  been  levied  on. 
This  was  objected  to,  and  overruled  by  the  court,  and  a  second 
bill  of  exceptions  thereupon  taken. 

J.  Hophins,  for  the  plaintiff  in  error,  admitted  the  rule  of  law, 
that  fraud  is  not  to  be  presumed.  But  a  part  of  the  rule  is,  that 
fraud  may  be  inferred  from  circumstances ;  otherwise,  this  sort 
of  knavish  combination  can  never  be  reached.  A  boy,  half  a 
i-^o/^o-|  year  *above  age,  takes  a  judgment  bond  of  four  hundred 
L  -■  and  sixty  dollars  from  an  insolvent  father.  This  is 
charged  to  be  a  mere  scheme  and  pretext  for  the  benefit  of  the 
father.  It  was  used  solely  for  his  benefit.  His  confessions  are 
offered  in  evidence.  Witnesses,  who  were  actually  present  at 
the  contrivance,  can  hardly  be  produced.  It  may  be  easily  seen 
how  intolerable  in  practice,  a  rule  must  be,  that  the  son,  in  cases 
like  this,  shall  not  be  affected  by  the  declarations  of  the  father, 
under  the  pretence  that  he  claims  not  under,  but  adversely  to 
the  father,  when  the  knowledge  of  the  fraud,  and  of  the  whole 
object  of  the  combination  had  been  proved  against  him.  The 
principle  of  law  which  I  submit  to  the  court  is,  that  in  civil 
cases,  and  even  in  criminal  cases,  the  declarations  of  one  of  the 
contrivers  and  partners,  is  evidence  against  another,  to  whom 
the  participation  in  the  fraud  has  been  brought  home  by  previous 
evidence.  1  Phil.  Ev.  76  ;  Coxe's  N.  J.  Rep.  13 ;  Dostwich  v. 
Lewis,  1  Day,  33 ;  Collins  v.  The  Commonwealth,  3  Serg.  & 
Rawle,  220;  M'Nally's  Ev.  611 ;  Meade  v.  M'Dowell,  5  Binn. 
195. 

2.  On  the  second  exception,  the  proof  was  material  to  show, 
that  over  and  above  the  four  hundred  and  sixty  dollars,  Daniel, 
the  son,  pretended  to  have  earned  by  his  short  services  to  his 
father,  sundry  articles  of  personal  property  in  his  father's  pos- 
session. It  is  said,  that  this  error,  if  error  it  was,  was  cured  by 
the  same  evidence  being  afterwards  given  on  the  trial.  That 
fact  is  not  admitted.  At  any  rate  it  does  not  appear  upon  the 
record.  Admit  even  the  fact  to  be  so ;  yet  the  court  did  not 
change  their  opinion.  And  evidence  creeping  into  a  cause  ac- 
cidentally against  the  declared  judgment  of  the  court,  can  have 
no  weight  with  the  jury. 

Norris,  for  the  defendant  in  error,  protested  against  applying 
the  rules  of  evidence  in  high  treason  and  conspiracy,  against 
the  obligee  in  a  bond.     This  very  question  has  been  expressly 
408 


June  2, 1829.]         OF  PENNSYLVANIA.  363 

[Eeitenbach  v.  Eeitenbach.] 

decided  in  Wolf  v.  Carothers,  3  Serg.  &  Rawle,  240.  All  the 
judges  in  that  case  gave  separate  and  unanimous  opinions,  that 
the  obligee  is  not  to  be  affected  by  the  confessions  of  the  obligor. 
He  shall  not  exonerate  himself  by  his  own  declarations.  No 
principle  can  be  more  obvious.  Peake's  Ev.  16 ;  Whiting  v. 
Johnson,  11  Serg.  &  Rawle,  328. 

2.  To  the  second  point,  a  conclusive  answer  is,  that  the  evi- 
dence excluded,  was  afterwards  given  in  full  upon  the  trial. 
Wolverton  v.  The  Commonwealth,  7  Serg.  &  Rawle,  273 ; 
Brown  v.  Downing,  4  Serg.  &  Rawle,  498 ;  Preston  v.  Harvey, 
2  Hen.  &  Munf.  55 ;  Allen  v.  Rostain,  11  Serg.  &  Rawle,  362, 
373. 

The  opinion  of  the  court  was  delivered  by 

Smith,  J. — This  suit  originated  by  the  entry  of  a  judgment 
by  Daniel  Reitenbach  against  Peter  Reitenbach,  on  a  warrant 
of  attorney,  on  the  7th  of  October,  1822,  in  the  Court  of  Com- 
mon Pleas  of  Lancaster  county  to  August  Term,  1822,  No.  293. 
On  the  8th  of  October,  1822,  a  fieri  facias  issued.  On  the  18th 
of  December,  *1823,  William  Brinton,  Jr.,  a  judgment  r*op4-| 
creditor  of  Peter  Reitenbach,  on  an  affidavit  filed,  ob-  ^  -^ 
tained  a  rule  to  show  cause  why  the  creditors  of  the  said  Peter 
Reitenbach,  the  defendant,  should  not  be  let  into  a  defence,  and 
why  all  proceedings  on  the  execution  should  not  be  stayed. 
This  rule  was  made  absolute,  and  the  cause  being  put  to  issue, 
came  on  to  be  tried,  when  a  verdict  and  judgment  were  rendered 
in  favour  of  the  plaintiff,  Daniel  Reitenbach.  In  the  course  of 
this  trial,  several  bills  of  exceptions  were  taken,  of  which  two 
only  are  offered  to  the  attention  of  this  court. 

The  paper-book  furnished  by  the  plaintiff,  Daniel  Reitenbach, 
is  very  diffusive,  and  exhibits  the  cause  in  its  whole  progress 
upon  the  trial.  As  the  two  bills  of  exceptions  neither  embody, 
nor  refer  to  this  mass  of  matter,  it  could  not  correctly  enter  into 
the  discussion  of  the  subjects  contained  in  the  bills  of  exceptions, 
nor  into  the  deliberations  of  the  court  upon  them.  A  bill  of 
exceptions  is  given  by  the  statute  to  bring  matters  of  importance, 
which  occur  in  the  course  of  a  trial,  on  the  face  of  the  record, 
which  would  otherwise  not  be  found  there,  so  as  to  secure  a  re- 
view of  them  by  a  superior  court,  if  either  party  should  find 
himself  aggrieved  by  the  decision  of  the  inferior  court  upon 
them.  In  its  nature,  it  therefore,  is  not  designed  to  draw  into 
question,  all  the  occurrences  of  the  trial,  but  that  matter  alone 
which  it  embraces ;  and  which  ought  to  be  set  forth  with  clear- 
ness and  precision.  The  rejection  or  admission  of  evidence,  or 
testimony,  or  legal  questions  raised  on  facts  admitted,  are  the 
appropriate  objects  of  it ;  in  the  decision  of  which  either  party 

409 


364  SUPREME  COURT  [Lancaster, 

[Beitenbach  v.  Reitenbach.] 

thinks  himself  injured.  See  1  Bac.  Ab.  528  ;  3  Johns.  558  ;  5 
Johns.  467,  and  8  Johns.  507.  These  two  bills  before  the  court, 
exhibit  all  the  testimony  necessary  to  give  a  correct  view  of  the 
offer,  and  found  upon  that  testimony  tlie  right  of  the  creditor  to 
introduce  other  testimony  which  lie  oflfered  to  the  court,  and  in 
which  he  was  overruled.  This  alone  we  have  authority  to  ex- 
amine, and,  therefore,  we  cannot  do,  as  the  counsel  of  the  de- 
fendant in  error  pressed  us  to  do,  take  an  excursion  with  him 
through  the  whole  of  this  voluminous  book.  Counsel  would 
save  themselves  much  labour,  trouble,  and  expense,  and  greatly 
economize  the  time  of  this  court,  so  precious  to  themselves  and 
their  clients,  as  well  as  to  the  court,  if  they  would  in  taking 
their  bills  of  exceptions,  exclude  everything  from  them,  which 
is  not  essentially  necessary  to  raise  the  question  of  law  that  is 
to  be  discussed  and  decided ;  and  to  present  that,  in  a  clear  and 
concise  form.  This  observation  is  made  from  an  ardent  wish  to 
correct  a  very  vicious  and  unfortunate  practice  which  prevails  in 
taking  bills  of  exceptions ;  by  which,  matter  altogether  useless 
and  testimony  entirely  foreign  to  the  point,  designed  to  be 
raised,  is  forced  into  them,  to  the  great  labour,  expense,  and 
trouble  of  the  profession  ;  to  the  great  inconvenience  and  drudg- 
ery of  the  trying  courts  in  settling  the  bills ;  and  to  the  great 
annoyance  of  the  supervising  courts,  in  searching  through  a 
paper-book,  swelled  into  a  pamphlet,  to  find  out  the  matter 
r**^fi'i1  ^hich  they  are  to  ^determine.  A  reformation  in  this 
*-  -I  respect  would  greatly  save  the  time  of  the  court  for  the 
use  of  suiters,  benefit  the  profession,  and  relieve  the  court  from 
a  great  deal  of  useless  drudgery. 

I  will  now  approach  the  bills  of  exceptions  themselves  :  and, 
from  the  first  bill  relied  on,  it  appears,  that  the  creditor  ofiered 
to  prove,  that  on  the  sale  of  Peter  Reitenbach's  property  by  the 
sheriif,  Daniel  Reitenbach  claimed,  and  retained  a  number  of 
articles,  which  had  been  levied  on.  This,  on  an  objection  by. 
the  plaintiff,  the  court  overruled,  and  would  not  permit  the  cred- 
itors to  give  in  evidence.  Now,  to  me,  it  is  exceedingly  clear, 
this  evidence  should  have  been  received ;  it  was  important,  and 
had  a  direct  bearing  on  the  question  before  the  court ;  and  that 
it  had  so,  will,  I  think,  be  evident  on  an  atfentive  consideration 
and  examination  of  the  whole  matter.  And,  in  order  to  arrive 
at  a  just  conclusion,  we  must  bear  in  miqd,  that  the  bond  in 
question  was  given  by  a  father  to  a  son,  for  services  and  work 
done,  and  this,  (in  the  language  of  the  testimony,)  after  the  son 
had  come  of  age.  Those  services  continued  for  six  months — 
the  bond  was  for  four  hundred  and  sixty  dollars — a  large  sum 
for  work  and  services  rendered  in  so  short  a  period.  Under 
these  circumstances,  then,  the  creditor  alleged,  there  was  fraud 
410 


June 3,lS2d.]        OF  PENNSYLVANIA.  365 

[Reitenbach  v.  Eeitenbach.] 

in  the  transaction,  and  the  bond  given  for  an  amount  not  due ; 
and,  to  prove  that  this  was  so,  he  oifered  to  show,  that  the  son 
had  claimed,  nay,  retained  a  number  of  articles,  which  had  been 
levied  on  as  the  father's  property ;  that,  therefore,  the  son  was 
paid  for  his  services,  and  could  have  had  no  demand  against  the 
father  at  the  time  the  bond  was  given.  If  this  was  proved,  it 
would  be  for  the  jury  to  say,  whether  the  amount  of  the  bond 
was  just,  or  how  much  was  due,  if  anything.  This  evidence 
should  have  been  permitted  to  go  to  them.  But  the  court 
below  refused  the  offer,  and  in  the  opinion  of  this  court,  therein 
erred. 

We  are  also  of  the  opinion,  that  the  court  erred,  when  they 
refused  to  allow  the  testimony  mentioned  in  the  second  bill  of 
exceptions.  On  the  trial,  the  creditor  had  given  strong  evidence 
to  show,  that  Daniel  Reitenbach  and  Peter  Reitenbach,  had 
entered  into  a  scheme  to  prevent  others,  the  creditors  of  Peter 
Reitenbach,  from  collecting  and  obtaining  their  debts  :  the 
giving  of  this  very  bond  was  to  be  the  means  of  carrying  the 
project  into  effect ;  and,  it  appeared,  that  they  had  not  only 
laid  a  plan  to  accomplish  their  object,  but  had  gone  on,  and 
attempted  to  draw  one  Jacob  Eshelman  into  their  scheme ;  in 
fact,  disclosed  in  part  to  him,  how  the  creditors  would  be  kept 
off.  The  creditor  having  thus  established  by  proof,  a  combina- 
tion between  the  father  and  son,  to  defraud  and  delay  creditors, 
in  order  to  show  the  same  more  completely,  proposed  to  prove, 
and  give  in  evidence,  the  declarations  of  Peter  Reitenbach, 
made  in  the  absence  of  Daniel  Reitenbach ;  what  he  had  said 
before  the  bond  was  given,  of  their  intention  of  giving  the 
bond  to  Daniel  Jleitenbach  to  keep  off  the  creditors,  and  that 
it  was  given  without  consideration,  and  for  that  purpose  only. 
This  too,  the  court  *overruled.  Now,  I  take  the  law  r^o/^/^-i 
to  be,  that  the  declarations  of  a  party,  made  in  regard  L  J 
to  such  an  illegal  act,  after  a  combination  to  do  the  act  has  been 
established  or  proved,  are  not  only  evidence  against  the  party 
making  such  declarations,  but  are  evidence  also  against  all 
others  of  the  combination,  who  are  made  equally  responsible 
for  the  consequences.  This  is  abundantly  clear  from  the  au- 
thorities cited  by  the  respectable  and  learned  counsel  for  the 
creditor,  particularly  from  the  case  of  Patton  v.  Freeman  et  al. 
1  Coxe's  N.  J.  Rep.  13,  in  which  it  was  decided,  that  where  a 
combination  to  perpetrate  a  fraud  was  proved,  evidence  of  a 
conversation  with  the  parties,  though  all  might  not  have  been 
present  during  the  whole  conversation,  was  good  against  all. 
So  also,  in  the  case  of  Bostwick  v.  Lewis,  1  Day,  33.  The 
declarations  of  Peter  Reitenbach  ought,  therefore,  to  have  been 
received  by  the  court,  and  as  that  was  not  done,  the  judgment 

411 


366  SUPREME  COURT  [Lancaster, 

[Beitenbach  v.  Beitenbach.] 

must,  for  this  reason  also,  be  reversed,  and  a  venire  facias  de 
novo  awarded. 

Judgment  reversed,  and  a  venire  facias  de  n/>va  awarded. 

Cited  by  Counsel,  3  Wh.  353,  410;  4  Wh.  47,  367;  6  W.  306;  6  W.  &  8. 
510 ;  3  Barr,  87  ;  14  Wright,  62 ;  12  S.  42 ;  6  N.  412. 
Approved  and  followed,  1  E.  460. 


[Lancaster,  June  3, 1829.] 
Eberle  against  Mayer. 

IN  EKKOE. 

An  order,  given  by  an  execution  creditor  to  the  sheriff,  to  stay  all  further 

Eroceedings  on  his  execution,  at  his  risk,  until  further  directions  is  a  waiver  of 
is  priority,  in  favour  of  a  second  execution,  received  by  the  sherifl"  during  the 
continuance  of  the  stay. 

Error  to  LancoMer  county. 

The  cause  was  argued  in  this  court  by  Parke,  for  the 
plaiutiif  in  error,  who  cited,  Levy  v.  Wallis,  4  Dall.  167 ; 
Chancellor  v.  Phillips,  4  Dall.  213;  Lewis  v.  Smith,  2  Serg. 
&  Rawle,  159;  1  Browne,  367;  United  States  v.  Conyngham, 
4  Dall.  358 ;  2  Browne,  333 ;  Cowden  v.  Brady,  8  Serg.  & 
Rawle,  510 ;  Clow  v.  Woods,  5  Serg.  &  Rawle,  280 ;  Hamilton 
V.  Russell,  1  Cranch,  316  ;  Martin  v.  Mathiot,  14  Serg.  &  Rawle, 
215;  Whipple  v.  Foot,  2  Johns.  Rep.  422;  Storm  v.  Woods, 
11  Johns.  Rep.  110;  3  Cowen,  422;  8  Johns.  Rep.  16;  17 
Johns.  Rep.  274. 

Ross,  contra,  cited  2  Yeates,  434 ;  Perit  v.  Wallis,  2  Yeates, 
524 ;  Knox  v.  Summers,  4  Yeates,  477 ;  Water's  Executor  v. 
M'Clellan,  4  DaJl.  208  ;  Lessee  of  Hughes  v.  Dougherty,  1 
Yeates,  497. 

The  circumstances  of  the  case  are  fully  detailed  in  the  opinion 
of  the  court,  which  was  delivered  by 

r*3fi71  *Smith,  J. — This  is  a  writ  of  error  to  the  Court  of 
•-  -I  Common  Pleas  of  Lancaster  county.  The  matter  came 
before  the  court  on  a  feigned  issue,  directed  to  try  the  question, 
whether  an  execution,  issued  by  the  plaintiff  in  error,  against  a 
certain  Jacob  Mayer,  Jr.,  was  entitled  to  be  first  paid  out  of 
the  money  raised  by  the  sheriff,  on  the  sale  of  the  personal  prop- 
erty of  the  said  Jacob  Mayer,  Jr.  It  was  tried  on  the  22d  of 
January,  1827,  and  a  verdict  and  judgment  rendered  for  the 
defendant.  On  the  trial,  it  appeared,  that  Jacob  Mayer,  the 
412 


June  3,1829.]        OF  PENNSYLVANIA.  367 

[Eberle  v.  Mayer.] 

defendant  in  error,  on  the  9th  of  June,  1819,  had  issued  a  fieri 
facias  against  Jacob  Mayer,  Jr.,  and  that  on  the  17th  of  July, 

1819,  a  levy  was  made  in  consequence  of  it,  on  seven  head  of 
cattle,  two  cows,  four  hogs,  twenty-seven  dozen  sheaves  of  wheat, 
also,  on  rye,  hay,  and  three  acres  of  corn  in  the  ground ;  to 
which  were  added,  on  the  21st  of  October,  1819,  four  acres  of 
rye,  and  two  acres  of  wheat,  then  in  the  ground  :  That  on  the 
25th  of  October,  1819,  Jacob  Mayer,  the  plaintiff  in  the  above 
stated  execution,  but  now  defendant  in  error,  gave  written  direc- 
tions to  the  sheriff,  "  to  stay  all  proceedings  in  the  above  recited 
execution,  at  his  risk,  until  further  directions."  On  the  3d  of 
November,  1819,  Ann  Eberle,  the  plaintiff  in  error,  had  a  fieri 
facias  issued  against  Jacob  Mayer,  Jr.,  which  was  levied,  as 
William  Taylor,  the  deputy  sheriff,  declares,  on  eight  or  nine 
head  of  horned  cattle,  a  flock  of  sheep,  eight  hogs,  and  all  the 
property  out  of  doors.  The  memorandum  of  this  levy,  he  says, 
was  left  in  the  sheriff's  office,  and  it  cannot  now  be  found  :  That 
on  this  same  day,  he  saw  a  written  advertisement  put  up  in  a 
public  inn,  in  the  town  of  Manheim,  signed,  "  Jacob  Mayer,"  for 
the  sale  of  his  personal  property  on  the  next  day.  The  sheriff, 
however,  sold  the  personal  property  of  Jacob  Mayer,  Jr.,  on  the 
first  fieri  facias,  delivered  to  him  on  the  9th  of  June,  1819. 
The  court,  after  the  sale,  granted  a  rule  on  Jacob  Mayer,  the 
defendant  in  error,  to  show  cause,  why  Ann  Eberle's  execution 
should  not  be  paid  out  of  the  money  arising  from  the  sale  of  this 
property.    This  rule  was  subsequently,  on  the  25th  of  September, 

1820,  argued,  and  held  under  advifeement  by  the  court,  till  the 
23d  of  December,  1820,  when  the  court  directed  an  issue  to  try 
this  question,  in  which  Ann  Eberle  should  be  the  plaintiff,  and 
Jacob  Mayer  the  defendant.  On  the  trial,  the  plaintiff  submitted 
to  the  court  the  following  points,  and  requested  their  answers  in 
writing,  to  wit : 

"  1.  That  if  the  jury  believe,  from  the  evidence,  that  the  de- 
fendant in  the  case,  by  his  proceedings,  on  his  judgments  and 
execution  against  Jacob  Mayer,  Jr.,  the  delay,-  and  order  of  stay, 
at  his  risk,  &c.,  intended  to  screen  the  property  of  Jacob 
Mayer,  Jr.,  from  his  other  creditors,  the  verdict  should  be  for 
the  plaintiff. 

"  2.  That  the  delay  of  sale  upon  Jacob  Mayer's  execution  for 
upwards  of  five  months,  leaving  the  property  with  the  defendant, 
without  a  return  of  the  execution,  accompanied  by  a  schedule  of 
the  property,  and  permitting  him  to  use,  and  eventually  to  adver- 
tise *it  for  sale  as  his  own,  is  a  fraud  in  law,  and  the  r*o/^o-| 
verdict  must  be  for  the  plaintiff,  particularly  the  levy  '-  -• 
being  on  household  furniture. 

"  3.  That  the  order  of  Jacob  Mayer,  the  first  execution  cred- 

413 


368  SUPREME  COURT  [LancaMer, 

[Eberle  v.  Mayer.] 

itor,  to  the  sheriff,  of  the  25th  of  October,  1819,  to  stay  all 
proceedings  upon  his  execution  at  his  risk,  until  further  direc- 
tions, is  a  waiver  of  his  priority  in  favour  of  a  subsequent 
execution,  put  into  the  hands  of  the  sheriff  during  the  pendency 
of  the  stay.  That  such  order  is  a  legal  fraud  as  to  subsequent 
executions." 

The  court,  in  their  charge,  (and  no  other  answers  were  given,) 
stated,  that  there  were  two  points  to  be  considered  in  this  case : 
1st.  The  operation  of  the  order  to  suspend ;  and  2d.  The  alle- 
gation of  fraudulent  intention  in  giving  it.  And  the  court 
then  added,  "We  certainly  are  not  warranted  in  going  further 
than  the  Supreme  Court  have  gone  in  the  cases  heretofore  de- 
cided by  them ;  but,  think  that,  comformably  to  these  decisions, 
I  should  not  be  authorized  to  instruct  you,  that  the  order  of 
Jacob  Mayer,  the  first  execution  creditor,  to  the  sheriff,  of  the 
25th  of  Octol)er,  1819,  to  stay  all  proceedings  upon  his  execu- 
tion, at  his  risk,  until  further  directions,  is,  of  itself,  and  with- 
out more,  a  waiver  of  his  priority  in  favour  of  a  subsequent 
execution,  put  into  the  hands  of  the  sheriff  during  the  pendency 
of  the  stay,  or  that  such  order  is  a  legal  fraud  as  to  subsequent 
executions."  To  this  charge  the  plaintiff  excepted,  and  he  now 
contends,  that  it  was  erroneous,  and  that  the  first  execution  was, 
in  this  case,  a  legal  fraud  as  to  the  subsequent  execution.  In 
order  to  determine,  whether  a  legal  fraud  existed  in  this  case,  it 
will  be  necessary  to  state  what  appeared  in  evidence,  and  was 
not  contradicted,  and  is  spread  on  the  record  under  considera- 
tion ;  and  in  doing  so,  it  is  absolutely  important  to  state,  and 
attend  to  dates.  Jacob  Mayer,  then,  on  the  5th  of  June,  1819, 
entered  a  judgment  on  a  bond,  dated  the  same  day  and  year, 
against  Jacob  Mayer,  Jr.,  conditioned  for  the  payment  of  one 
hundred  pounds,  on  the  5th  of  June,  1820;  but  two  days  af^er, 
on  the  7th  of  June,  1819,  he  entered  satisfaction  on  this  judg- 
ment. On  the  same  7th  of  June,  1819,  he  entered  another 
judgment  on  another  bond,  dated  the  same  last  mentioned  day, 
conditioned  for  the  payment  of  one  hundred  and  eighteen 
pounds  fifteen  shillings,  but  payable  on  demand  against  the 
said  Jacob  Mayer,  Jr.  From  the  record,  it  appears  that  Ann 
Eberle  had  brought  a  suit  against  Jacob  Mayer,  Jr.,  in  which 
she  obtained  on  the  7th  of  June,  1819,  by  an  award  of  arbi- 
trators, a  judgment  for  one  hundred  and  sixteen  dollars  and 
twenty-nine  cents.  Then,  on  the  8th  of  June,  1819,  the  day 
after  Ann  Eberle  had  obtained  her  award,  Jacob  Mayer 
issued  an  execution  on  his  judgment  of  the  7th  of  June,  1819, 
and  delivered  the  same  to  the  sheriff  on  the  9th  of  June,  the 
next  day.  On  the  21st  of  October,  1819,  Jacob  Mayer,  Jr., 
called  on  the  sheriff,  and  requested  to  know,  whether  he 
414 


7Mn€3,1829.]        OF   PENNSYLVANIA.  368 

[Eberle  v.  Mayer.] 

could  not  sell  his  goods  himself,  when  he  was  told,  it  was  not 
the  legal  way  of  proceeding.  Five'  days  after  this  inquiry, 
*on  the  25th  of  October,  1819,  Jacob  Mayer,  the  plain-  r*of>q-| 
tiff,  left  the  order  with  the  sheriff,  desiring  a  stay  of  ^  J 
proceedings  on  his  execution  against  Jacob  Mayer,  Jr.,  as  al- 
ready stated.  On  the  3d  of  November,  1819,  Ann  Eberle's 
execution  was  delivered  to  the  sheriff;  and  then  two  days  after, 
on  the  5th  of  November,  1819,  Jacob  Mayer  desired  the  sheriff 
to  proceed  on  his  execution,  and  asked  the  sheriff  whether  it 
would  not  do  to  go  there  and  sell  under  the  advertisement  they 
had  put  up.  In  consequence  of  these  directions,  the  property 
was  sold,  it  having  been  all  the  time  in  the  possession  of  Jacob 
Mayer,  Jr.  When,  therefore,  we  take  an  attentive  view  of  all 
the  proceedings  and  acts  of  the  parties,  the  conduct  of  Jacob 
Mayer  must  appear  irreconcilable  with  good  faith;  and  I  think 
the  court  would  have  been  warranted,  under  the  circumstances, 
in  assuming  that  the  only  question  was,  whether  the  facts  given 
in  evidence  amounted  to  a  legal  fraud,  as  to  the  subsequent  exe- 
cution? And  that  this  was  for  the  court  to  decide.  It  is  true, 
that  merely  leaving  the  property  levied  on  in  the  possession  of 
the  defendant  in  the  execution,  though  with  the  plaintiff's  con- 
sent, is  not  per  se,  fraudulent,  either  as  to  subsequent  execution 
creditors,  or  purchasers ;  but,  where  the  plaintiff  directs  the 
sheriff,  as  here,  to  delay  the  execution  or  sale,  the  law  is  other- 
'Avise. 

All  the  cases  cited,  (and  I  have  examined  them  all,)  in 
Yeates'  Reports,  and  in  Johnson's  and  Cowen's  Reports,  and 
also  the  English  cases,  clearly  establish  the  principle,  that  where 
the  creditor  interferes  and  directs  a  delay  of  sale,  and  leaves 
the  goods  with  the  debtor  in  every  snch  case,  a  second  execu- 
tion coming  in  will  have  a  preference.  I  then  think  that  con- 
formably to  the  decisions  on  the  subject,  the  court  below 
would  hav^e  been  authorized  to  instruct  the  jury,  and  that  it 
should  so  have  instructed  them,  that  the  order  of  Jacob  Mayer, 
of  the  25th  of  October,  1819,  to  the  sheriff,  to  stay  all  further 
proceedings  on  his  execution,  at  his  risk,  until  further  direc- 
tions was,  of  itself,  a  waiver  of  his  priority,  in  favour  of  the 
second  execution,  received  by  the  sheriff  during  the  pendency 
of  the  stay ;  in  other  words,  that  by  the  order,  the  plaintiff's 
execution  must  be  considered  as  dormant,  and  constructively 
fraudulent  as  against  the  subsequent  execution.  The  evidence 
here,  as  in  the  case  in  17  Johns.  276,  warrants  the  inference, 
that  the  plaintiff  issued  his  fieri  facias,  not  with  an  absolute 
intention  of  collecting  his  debt,  but  partly  at  least,  with  a 
view  to  cover  the  property  of  the  debtor  for  his  use.     The 

415 


369  SUPREME  COURT  [Lancaster, 

[Eberle  v.  Mayer.] 

judgment  is  therefore  reversed,  and  a  venire  facias  de  novo 
awarded. 

Judgment  reversed,  and  a  venire  faxsias  de  novo  awarded. 

ated  by  Counsel,  3  Penn  R.  489;  5  R.  289;  9  W.  336;  10  W.  439;  3  W. 
&  S.  286;  6  W.  &  S.  466;  7  W.  &  S.  66;  8  W.  &  S.  457;  4  Barr,  155;  2  J. 
359 ;  5  Wright,  276. 

Cited  by  the  Court,  4  R.  380;  5  Wh.  153;  7  W.  77,  187 ;  1  H.  412. 


[*370]  *[Lakcasteb,  Jtote  3, 1829.] 

Caldwell  against  Thompson,  Executor  of  Thompson. 

IN  EBROE. 

On  an  appeal  from  a  justice  of  the  peace,  though  the  form  of  the  suit  may 
be  sometimes  changed,  yet  the  cause  of  action  must  be  the  same  as  before  the 
justice. 

Where  it  is  alleged  that  the  transcript  returned  to  the  Common  Pleas,  does 
not  conform  to  the  justices  docket,  which  is  alleged  to  be  erroneous,  and  an 
application  is  made  for  leave  to  amend  the  docket  by  the  transcript,  the 
court  below  are  to  determine,  upon  inspection  of  the  docket,  and  all  the 
papers  and  evidence  before  them,  what  are  the  true  words  of  the  record ;  and 
if  they  refuse  the  amendment,  this  court  will  not  for  that  reason,  reverse  the 
judgment. 

Error  to  the  Court  of  Common  Pleas  of  Lancaster  county.  ** 
The  plaintiff  in  error  was  plaintiff  below.  The  cause  came 
into  the  Court  of  Common  Pleas  on  an  appeal  by  the  defendant 
from  the  judgment  of  a  justice ;  and  the  declaration  was  for 
goods,  chattels  and  merchandise,  sold  and  delivered.  The  alle- 
gations of  error,  material  to  be  stated  were,  1st.  That  when  the 
plaintiff  offered  to  prove  by  John  Evans,  "  That  on  the  8th  of 
June,  1807,  in  pursuance  of  an  order  from  James  Caldwell,  he 
delivered  to  Robert  Thompson,  the  defendant's  testator,  three 
hundred  bushels  of  wheat  that  was  stored  in  his  store-house,  the 
property  of  James  Caldwell,  the  plaintiff,  and  that  the  price  of 
■wheat  was  then  one  dollar  and  four  cents  a  bushel ;  and  also, 
that  the  defendant  admitted  the  plaintiff's  account  to  be  correct 
and  right :"  the  court  overruled  the  evidence  which  had  been 
objected  to,  on  the  ground  that  it  presented  a  totally  different 
cause  of  action  from  the  one  decided  by  the  justice.  A  balance 
only  of  forty  dollars  and  interest  were  claimed  to  be  due  on  the 
sale  of  the  wheat. 

2d.  The  plaintiff  then  offered,  in  connection  with  the  proposed 

testimony  of  John  Evans,  the  docket  of  the  justice,  now  in  the 

hands  of  his  administrator,  to  show  that  the  return  of  the  justice 

upon  the  transcript  is  not  in  conformity  with  the  docket,  and 

416 


June  3,1829.]        OF  PENNSYLVANIA.  370 

[Caldwell  v.  Thompson,  Executor  of  Thompson.] 

that  stating  the  demand  in  the  said  transcript  to  be  for  a  chair, 
is  a  mistake,  as  no  such  demand  is  stated  in  the  docket.  And 
in  connection  with  that  evidence,  he  also  oifered  the  affidavits  of 
the  plaintiff,  and  of  Boughman,  the  administrator  of  the  justice, 
to  establish  tlie  mistake,  and  then  applied  for  permission  to 
amend  the  transcript  of  the  justice  by  the  docket.  All  these 
matters  were  rejected  by  the  court,  and  bills  of  exceptions  taken 
thereupon.  Among  other  things,  it  was  alleged  by  the  counsel 
for  the  defendant,  that  the  docket  entry  itself  had  been  altered. 
The  original  transcript  was  as  follows  : — 

*"  James  Caldwell,  Esq.,  V.  An- ^  Summons,  on  demand,  r^oyi-i 
drewThompson,  Executor  of  y  not  exceeding  one  hun-  •-  J 
James  Thompson,  deceased.  J  dred  dollars ;  debt  by  book  ac- 
count for  a  chair,  sixty-four  dollars  and  fifty  cents.  The  de- 
fendant appeared  July  27th,  1816.  The  constable  not  having 
notified  the  plaintiff,  continued  to  July  27th.  At  2  o'clock  the 
said  day,  the  plaintiff  appeared.  On  hearing,  judgment  for  the 
plaintiff  for  sixty-four  dollars  and  fifty  cents,  by  default,  the 
defendant  not  appearing,  with  costs  of  suit,  July  27th,  A.  D. 
1816;  justice's  fees  sixty-two  and  a  half  cents,  constable's 
seventy-five  cents.'' 

The  justice  added  to  the  original  transcript  as  follows : — 
"Mistake:  defendant's  testator's  name  is  Robert  instead  of 
James,  and  is  so  stated  on  my  docket." 

Champneys,  for  the  plaintiff  in  error,  contended,  that  by  the 
act  of  1806,  by  the  law,  as  it  stood  before,  and  all  the  numerous 
decisions  in  this  court,  the  amendment  was  proper ;  that,  to  re- 
ject it  was  error;  and  that  to  reject  the  evidence  of  Evans  was 
also  error.  If  there  was  any  ground  to  imagine  the  docket  to 
have  been  fraudulently  touched,  that  was  a  fact  in  the  cause  to 
be  decided  like  other  facts  by  the  jury.  He  referred  to  Whart. 
Dig.  Amendment,  Letter  E. ;  Zeigler  v.  Fowler,  3  Serg.  & 
Rawle,  238;  Clarke  v.  M'Anulty  3  Serg.  &  Rawle,  364; 
Bechtol  V.  Cobaugh,  10  Serg.  &  Rawle,  121 ;  Cochran  v.  Parker, 
6  Serg.  &  Rawle,  549. 

Parke  and  Porter,  contra,  argued  for  the  defendant  in  error, 
that  in  a  case  of  most  apparent  erasure,  it  was  correct  to  with- 
hold from  the  jury  a  doubtful,  if  not  fraudulent  entry,  contrary 
to  the  record  and  transcript  in  the  cause.  It  was  also  right  not 
to  suffer  a  hopeless  demand  for  a  riding  vehicle,  called  a  chair, 
to  be  given  up,  and  in  lieu  of  it,  an  old  charge  for  wheat,  to  be 
substituted  against  the  estate  of  the  testator.  Thev  cited  Moore 
VOL.  I.— 27  '    417 


371  SUPREME  COURT  OF  PA.       [Lancaster, 

[Caldwell  v.  Thompson,  Executor  of  Thompson.] 

V.  Wait,  1  Binn.  219;  Owen  v.  Shelmaher,  3  Binu.  45; 
M'Laughlin  v.  Parker,  3  Serg.  &  Ravvle,  144 ;  Laird  v.  M'Co- 
nachy,  3  Serg.  &  Rawle,  290 ;  Stehlev  v.  Harp,  5  Serg.  &  Rawle, 
544 ;  Cassell  v.  Cooke,  8  Serg.  &  Rawle,  268,  287  ;  Farmers' 
and  Mechanics'  Bank  v.  Israel,  6  Serg.  &  Rawle,  293 ;  Bailey  v. 
Musgrave,  2  Serg.  <fe  Rawle,  219;  Newlin  v.  Palmer,  11  Serg. 
&  Rawle,  98. 

The  opinion  of  the  court  was  delivered  by 

Tod,  J. — One  rule  to  be  deduced  from  the  cases  unquestion- 
ably is,  that  on  appeal,  though  the  form  of  the  suit  may  be 
sometimes  changed,  yet  the  substance  of  the  plaintiff's  demand, 
the  cause  of  the  action,  must  be  in  court  identically  the  same  as 
before  the  justice.  From  the  decisions,  another  rule  seems 
equally  clear,  that  the  mistakes,  the  slips  of  the  pen  of  a 
justice  of  the  peace,  may  be,  and  ought  to  be  corrected.  But 
here,  all  mistake  was  denied.  It  was  insisted,  there  was  nothing 
wrong,  except  in  the  docket  offered ;  and,  upon  this  head,  divers 
r*'^791  D^^^^^^'s  were  alleged  on  the  one  side  and  *on  the  other. 
L  J  The  court  were  to  decide  what  were  the  true  words  of  the 
record.  It  was  not  a  question  for  the  jury.  And  the  court 
below  having  settled  it  on  inspection  of  the  docket  and  all  the 
papers,  and  affidavits,  ought  we  to  interfere,  and  upon  disputed 
facts,  rather  than  upon  any  question  of  law,  to  revei'se  the  judg- 
ment ?  I  think  not.  Much  must  be  left  to  the  discretion  of 
the  court  in  which  such  applications  are  made.  Taking  all  the 
evidence  as  it  appears  on  the  record,  and  the  testimony  offered 
from  John  Evans,  and  considering  that  the  plaintiff's  claim  for 
the  wheat  was  of  nine  years'  standing  when  he  brought  his  suit 
before  the  justice,  after  the  death  of  the  defendant's  testator,  it 
is  not  a  case  in  which,  in  my  opinion,  the  law  calls  upon  us  to 
disturb  any  part  of  the  decision  of  the  court  below. 

Judgment  affirmed. 

Cited  by  Counsel,  3  Wh.  422;  4  W.  329;  2  G.  160. 

Cited  by  the  Court,  2  W.  15 ;  4  W.  &  S.  327 ;  1  J.  150 ;  3  Wright,  86. 


END  OF  MAY  TEEM,  1829.— LANCASTER  DISTRICT. 


418 


CASES 
THE  SUPREME  COURT 

OF 

PENNSYLVANIA. 


MIDDLE  DISTEICT— JUNE  TERM,  1829. 


[SuNBURY,  June  15,  1829.] 

Innis  and  Others  against  Campbell  and  Others. 


An  undisturbed  possession  of  twenty-four  years  before  bringing  the  action, 
is  sufficient  to  enable  the  plaintiff'  to  recover  in  an  ejectment. 

The  lapse  of  twenty-four  years,  though  without  proof  of  inquiry,  or  other 
circumstances,  is  sufficient  to  warrant  the  presumption  of  death  of  a  person 
of  whom  nothing  has  been  heard  for  that  length  of  time. 

Not  having  been  heard  of  for  seven  years,  is  sufficient  to  rebut  the  presump- 
tion of  life. 

An  ejectment  may  be  commenced  on  a  strict,  legal  title,  and  the  plaintiff" 
may  rebut  a  countervailing  equity,  set  up  by  the  defendant,  on  the  trial. 

If  incumbrances  exist,  they  may  be  valued  and  allowed  for  by  the  jury. 

Appeal  from  the  Circuit  Court,  held  by  Gibson,  C.  J.,  in 
Mifflin  county. 

The  original  action  wa.s  an  ejectment  in  the  Court  of  Common 
Pleas  of  Mifflin  county  for  a  tract  of  land  in  Lark  township, 
containing  two  hundred  and  five  acres,  or  thereabouts,  brought 
bv  Alexander  Innis  and  Rebecca,  his  wife,  and  James  M'Kennan 
and  Margery,  his  wife,  against  John  Campl)ell  and  David  W. 
Huling. 

The  evidence  given  on  the  trial  was  long,  and  somewhat  com- 
plicated. It  is  sufficient,  in  order  to  understand  the  decision  of 
the  court,  to  state,  that  the  plaintiffs  asserted  a  legal  title  to 

419 


373  SUPREME  COURT  [Sunfmry, 

[Innis  and  others  v.  Campbell  and  others.] 

the  premises,  founded  partly  on  a  chain  of  conveyances,  and 
partly  on  an  undisturbed  possession  of  twenty-four  years  Ixjfore 
the  action  was  brought,  and  of  twenty-nine  years  before  the 
r*'^74l  *'''^^'  ^"^  ^'"^  "^  **^'^  chain  of  title  was  a  deed,  dated 
L  -•  August  loth,  1805,  from  Andrew  Wallace  and  Eleanor, 
his  wife,  to  James  Wallace ;  the  execution  of  which  was  certi- 
fied by  the  President  of  the  court  for  the  first  circuit,  Warren 
county,  in  the  State  of  Ohio,  to  have  been  proved  before  him 
by  the  oaths  of  the  two  subscribing  witnesses.  The  cer- 
tificate was  signed  by  the  judge,  and  a  scroll  for  a  seal  was 
annexed. 

On  the  7th  of  January,  1814,  articles  of  agreement,  under 
seal,  were  executed  between  Thomas  Jackson  under  whom  the 
plaintiffs  claimed,  and  John  Cummin,  by  which  the  former 
"  bargained  and  sold "  to  the  latter  the  laud  in  question,  at 
twenty  dollars  per  acre ;  the  said  Cummin  to  take  the  laiid  at 
what  the  draft  calls  for,  and  to  pay  one-half  of  the  whole 
amount  of  the  laud  on  the  1st  of  April  following,  and  to  give 
bond  with  good  security  for  the  payment  of  the  balance,  to  be 
paid  annually  in  instalments  of  four  hundred  dollars  each.  The 
vendor  to  deliver  to  the_ vendee  "a  clear  patent  on  the  1st  day 
of  April,  1815 ;"  on  which  day  the  first  payment  of  four  hun- 
dred dollars  was  to  be  made.  The  first  payment  was  punctu- 
ally made ;  the  subsequent  instalments  were  not  paid,  nor  ten- 
dered, nor  were  any  bonds  tendered. 

The  jury  found  a  verdict  for  the  plaintiffs,  to  he  released  on 
payment  of  two  thousand  five  hundred  and  sixty-nine  dollars 
and  seventy  cents,  the  full  amount  of  the  balance  of  purchase- 
money  and  interest. 

A  motion  for  a  new  trial  was  made  on  the  part  of  the  defend- 
ants, and  several  points  made.  The  motion  was  overruled,  and 
the  defendants  appealed  to  the  Supreme  Court ;  where  the  cause 
was  argued  by  Potter  and  Hale,  for  the  appellants,  and  by  Blythe 
and  Blanchard,  for  the  appellees. 

The  opinion  of  the  court  was  delivered  by 

Gibson,  C.  J. — My  remarks  shall  be  confined  to  the  only 
part  of  the  case  that  affords  a  pretext  for  an  argument.  An 
exception  to  the  admission  of  Andrew  Wallace's  deed,  was  in 
fact  not  taken  ;  but,  as  it  was  omitted  in  consequence  of  a  sug- 
gestion of  the  judge,  that  the  defendant  would  have  the  benefit 
of  his  objection  in  another  way,  he  ought  to  have  the  benefit  of 
it  here.  The  execution  of  this  deed  was  not  proved,  and  it  was 
undoubtedly  inadmissible.  But  an  undisturbed  adverse  posses- 
sion of  twenty-nine  years  preceding  the  trial,  and  twenty-four 
preceding  the  action,  was  shown  to  have  been  in  the  grantee,  or 
420 


June  15,  1829.]      OF   PENNSYLVANIA.  374 

[Innis  and  others  v.  Campbell  and  others.] 

those  claiming  under  him  ;  and  thus,  independent  of  the  deed, 
the  plaintiffs  had  made  out  a  legal  title  in  themselves,  and  the 
error  in  admitting  incompetent  evidence  of  what  was  fully- 
proved  by  unexceptionable  evidence  afterwards,  became  imma- 
terial. Even  on  a  writ  of  error,  where  there  is  no  discretion, 
the  admission  of  incompetent  evidence  is  not  a  ground  of  rever- 
sal where  the  fact  has  been  conclusively  proved  by  competent 
evidence.  Wolverton  v.  The  Commonwealth,  7  Serg.  <fe  Rawle, 
*273 ;  Preston  v.  Harvey,  2  Hen.  &  Munf  64.  And  rt-375-i 
we  ought,  a  fortiori,  to  disregard  an  error,  in  this  re-  L  -• 
spect,  on  a  motion  which  involves  the  exercise  of  discretion, 
where  there  is  unexceptionable  evidence  to  warrant  the  ver- 
dict. 

It  is  objected,  that  notwithstanding  the  effect  of  the  statute  of 
limitation,  the  want  of  a  conveyance  from  Wallace  and  his  wife, 
left  the  defendant  exposed  to  a  demand  of  her  dower,  which 
ought  to  have  been  compensated  by  deducting  from  the  purchase- 
money  a  sum  equal  to  the  value  of  the  risk.  Mrs.  Wallace,  if 
living,  would  undoubtedly  have  at  least  an  incipient  right  of 
dower ;  and  of  her  death,  there  was  no  other  evidence  than  mere 
lapse  of  time.  A  {)erson,  proved  to  have  been  alive  at  a  par- 
ticular time,  is  presumed  to  be  so  still ;  and  the  onus  of  proof  is 
on  him  who  alleges  the  contrary.  But  in  addition  to  lapse  of 
time,  proof  that  he  lias  not  been  heard  of  for  seven  years,  is 
sufficient  to  rebut  the  presumption  of  life ;  and,  was  it  shown 
that  Mrs.  Wallace  had  not  been  heard  of  for  that  period,  there 
would  clearly  be  sufficient  to  warrant  a  presumption  of  her 
death.  2  Stark.  Ev.  458.  But  the  question  is,  whether  the 
lapse  of  twenty-four  years,  without  proof  of  inquiry,  or  other 
circumstance,  be  not  of  itself,  sufficient  to  warrant  such  a  pre- 
sumption ;  and,  although  I  know  of  no  authority  in  j)oint,  I  am 
of  opinion  that  it  is.  No  witness  spoke  of  her  age  at  the  execu- 
tion of  the  deed,  (the  period  at  which  we  have  any  account  of 
her,)  but  under  the  most  favourable  circumstances,  the  chances 
are  unfavourable  to  the  presumption  of  her  having  been  alive  at 
the  time  of  the  trial.  If  living,  she  must  have  attained  an  age 
cons'. lerably  in  advance  of  the  average  term  of  human  existence. 
It  is  said,  that  rather  less  than  twenty  years  should  be  com- 
puted, because  it  is  necessary  to  the  plaintiffs'  case,  that  Mrs. 
Wallace  should  have  been  dead  at  the  commencement  of  the 
action.  But  the  cause  of  action  did  not  depend  on  the  absence 
of  incumbrances.  It  has  been  erroneously  said,  that  this  is  an 
equitable  ejectment  for  a  specific  performance  of  the  contract  of 
sale.  Exactly  the  reverse.  It  is  founded  on  a  legal  title  which 
has  not  been  conveyed ;  and  it  is  consequently  in  disaffirmance 
of  the  sale.     The  consequence  intended  to  be  produced  is,  no 

421 


375  SUPREME  COURT  [Sunhury, 

[Innis  and  others  v,  Campbell  and  others.] 

doubt,  payment  of  the  purchase-money ;  but  that  is  neither  a 
direct,  necessary,  nor  a  natural  effect  of  a  recovery.  Such 
ejectments  are  frequently  maintained  even  in  England,  where 
there  is  no  defence  at  law ;  the  defendant  being  relievable  only 
in  equity  on  proof  of  having  paid  the  j)urchase-money,  or  done 
all  that  he  safely  could  to  entitle  him  to  a  conveyance;  and 
even  there,  the  chancellor  will  let  the  law  take  its  course  if  there 
be  no  incumbrance  at  the  hearing.  Cassell  v.  Cooke,  8  Serg.  & 
Rawle,  268,  was  altogether  a  different  case.  There,  the  per- 
formance  of  the  plaintiff's  covenant  to  make  an  unexceptionable 
title,  was  a  condition  precedent  to  the  institution  of  an  action  at 
law ;  and  it  is  clear,  that  there  must  be  a  perfect  cause  of  action 
either  in  equity  or  at  law  at  the  inception  of  the  suit.  Snider 
r^ojo-i  v.  Wolfley,  8  Serg.  &  Rawle,  328.  But  an  action  *may 
L  J  always  be  commenced  on  a  complete  legal  title,  it  being 
sufficient  to  obviate  a  countervailing  equity  at  the  trial.  Lessee 
of  Moody  V.  Vandyke,  4  Binn.  31.  A  discretionary  power 
over  the  costs  would,  in  some  cases,  be  necessary  to  enable  us 
to  maintain  the  suit,  and  yet  do  justice  to  a  defendant  who  has 
been  vexed  by  a  suit  at  law,  to  which,  at  its  inception,  he  had 
an  available  defence  in  equity.  But  here  there  can  be  no  hard- 
ship on  that  ground,  as  the  defendant  would  be  entitled  only  to 
have  the  incumbrance  valued  and  deducted  from  the  purchase- 
money  ;  so  that  the  vendor,  in  any  event,  would  be  entitled 
to  costs,  as  regards  the  residue.  It  is  sufficient,  therefore,  that 
there  was  evidence  of  an  extinguishment  at  the  trial ;  and  sub- 
stantial justice  having  been  done  by  the  verdict,  I  am  of  opinion, 
that  the  judgment  of  the  Circuit  Court  be  affirmed. 

Smith,  J.,  concurred ;  Tod,  J.,  dissenting,  and  Rogers,  J., 
and  Huston,  J.,  not  having  heard  the  argument,  taking  no  part 
in  the  decision. 

Judgment  affirmed. 

Cited  by  Counsel,  4  Wh.  166,  174;  5  Wh.  34;  1  Wh.  228 ;  2  Wh.  463;  6 
W.  &  S.  209 ;  10  Barr,  74;  11  H.  115 ;  12  H.  141 ;  2  G.  108 ;  3  O.  225. 


422 


June  15,1S29.]      OF   PENNSYLVANIA.  •     377 


*[SuNBURY,  June  15, 1829.]  [*377] 

Seitzinger,  Administrator  of  Strohecker,  for  tlie  use  of 
Drinkel,  Administrator  of  Garver,  against  Weaver, 
Administrator  of  Grant. 


Tlie  covenants  raised  by  the  words  grant,  bargain,  and  sell,  by  force  of 
the  act  of  tissembly  of  the  28th  of  May,  1715,  are  not  applicable  alone  to 
deeds  executed,  but  extend  to  articles  of  agreement  for  the  conveyance  of 
land 

The  words  grant,  bargain,  and  sell,  do  not  create  a  covenant  of  special  war- 
ranty, running  with  the  land  and  broken  only  by  eviction.  The  act  intended 
to  give  to  the  vendee  the  benefit  of  two  distinct  covenants;  a  covenant  of 
seisin  as  regards  defeasibility  from  the  acts  of  tlie  vendor,  and  a  covenant  for 
quiet  enjoyment  against  disturbance  by  tlie  vendor,  and  those  claiming  under 
him  ;  and  the  covenant  of  seisin  is  broken  by  the  existence  of  an  incumbrance 
created  by  the  vendor,  the  instant  it  is  sealed  and  delivered. 

Tlie  previous  sale  of  part  of  the  land  by  articles  of  agreement,  is  an  incum- 
brance on  tlie  legal  estate,  whicli  renders  it  defeasible  in  the  hands  of  the  sub- 
sequent vendee,  who  may,  therefore,  maintain  an  action  to  recover  back  the 
purcliase-money. 

Where  A.  entered  into  articles  of  agreement  to  convey  lands  to  B.,  who 
paid  a  small  portion  of  tlie  purcliase-money,  after  which  A.  died,  without 
having  executed  a  conveyance,  but  leaving  a  will,  by  which  he  empowered 
his  executors  to  sell  for  the  payment  of  debts  and  education  of  children,  and 
B.  took  no  step  to  have  the  title  completed,  but  C,  B.'s  father-in-law,  and  D. 
his  father,  paid  the  residue  of  the  purchase-money,  and  received  from  the  ex- 
ecutors of  A.  a  conveyance  for  the  land,  which  they  afterwards  divided  be- 
tween them :  held,  tliat  a  suit  could  not  be  maintained  upon  tiie  covenants 
created  by  the  words  grant,  barsjain,  and  sell,  in  the  agreement  in  the  name 
of  B.,  for  the  use  of  C,  to  recover  back  part  of  the  purchase-money,  in  con- 
sequence of  the  existence  of  an  incumbrance  previously  created  by  A.,  by 
which  the  title  of  C.  to  part  of  the  land  was  defeated.  Nor  can  15.  in  such  an 
action,  recover  back  that  part  of  the  purchase-money  which  he  has  paid  to 
the  testator. 

The  presumption  of  law  is,  that  the  acceptance  of  a  deed  in  pursuance  of 
articles  of  agreement,  is  satisfaction  of  all  previous  covenants ;  and,  although 
there  may  be  cases  in  which  such  acceptance  is  but  a  part  execution  of  the 
contract,  yet,  to  rebut  the  legal  presumption,  the  intention  to  the  contrary 
must  be  clear  and  manifest. 

This  cause  was  tried  before  Tod,  J.,  at  the  Circuit  Court  of 
Northumberland  county  in  April,  1828,  when  a  verdict  was  ren- 
dered for-  the  plaintiff.  A  motion,  made  on  behalf  of  the  de- 
fendant for  a  new  trial  having  been  overruled,  this  appeal  was 
entered. 

The  action  was  covenant,  brought  by  Jacob  Seitzinger, 
administrator  of  Daniel  Strohecker,  for  the  use  of  Daniel 
Drinkel,  administrator  of  John  Garver,  against  Martin  Weaver, 
administrator  de  bonis  non,  cam.  testamenlo  annexo,  of  Thomas 

423 


377  SUPREME  COURT  [Sunbury, 

[Seitzinger,  Administrator  of  Strohecker,  for  the  use  of  Drinkel,  Administrator 
of  Garver,  v.  Weaver,  Administrator  of  Grant.] 

Grant,  whose  executors  had  been  discharged  from  their  office. 
The  declaration  was  upon  articles  of  agreement,  dated  the  26th 
of  April,  1815,  by  which  the  said  Thomas  Grant  agreed  to  sell 
r*'?78l  *^  ^^^  ^^^^^  *Daniel  Strohecker,  a  certain  tract  of  land, 
«-  J  and  contained  a  profert  of  the  agreement.  The  plea 
was  non  est  factum.  The  instrument  having  been  lost,  the 
plaintiff  was  permitted  on  the  trial,  though  opposed  by  the  de- 
fendant's counsel,  to  prove  its  contents.  It  appeared,  that  by 
the  terms  of  the  agreement,  five  hundred  dollars  of  the  pur- 
chase-money were  to  be  paid  in  three  weeks  from  its  date;  half 
the  residue,  in  the  following  October,  and  the  other  half  on 
the  first  of  the  following  April.  It  contained  no  covenants 
except  those  which  might  arise  from  the  words  "  grant,  bar- 
gain, and  sell."  On  the  agreement  was  the  following  indorse- 
ment : — 

"  I  do  agree  to  convey  to  D.  Strohecker  the  within  described 
tract  of  land  in  fee  simple.  13th  of  May,  1815."  Signed 
Enoch  Smith. 

Thomas  Grant,  after  having  received  from  Daniel  Strohecker 
four  hundred  and  ninety  dollars  of  the  purchase-money,  died, 
without  having  executed  a  conveyance.  He  left  a  will,  by  which 
he  empowered  his  executors  to  sell  his  real  estate  for  the  pay- 
ment of  his  debts  and  the  education  of  his  children.  Daniel 
Strohecker  took  no  measures  to  have  the  title  perfected ;  but, 
on  the  14th  of  June,  1816,  the  executors  of  Grant  excuted  a 
deed,  with  general  warranty  for  the  premises  contracted  for,  to 
John  Garver,  the  father-in-law,  and  John  Strohecker,  the  father 
of  Daniel,  who  paid  the  residue  of  the  purchase-money.  A 
partition  of  the  land  was  afterwards  made  between  John  Garver 
and  John  Strohecker.  To  April  term,  1820,  an  ejectment  was 
brought  by  Rebecca  Stedman  against  John  Johnson  and  Daniel 
Strohecker,  to  recover  a  part  of  the  tract  above  mentioned. 
It  appeared,  that  on  the  15th  of  March,  1792,  William  Cook 
and  Thomas  Grant  had  contracted,  by  articles  of  agreement, 
to  convey  a  tract  of  land  to  James  Stedman  ;  but  the  evidence 
did  not  show  in  what  manner  Rebecca's  title  was  connected 
with  this  agreement.  On  the  23d  of  January,  1822,  she  had 
judjj^ment  for  eighty-nine  acres  and  seventy-nine  perches,  of 
which  possession  was  delivered  to  her  on  an  habere  facias  pos- 
sessionem. In  the  meantime,  John  Garver  died,  and  on  the 
29th  of  April,  1820,  his  heirs  conveyed  that  portion  of  the 
land,  which  in  the  partition  had  been  allotted  to  him,  and  which 
included  the  land  afterwards  recovered  by  Rebecca  Stedman,  to 
George  Kremer,  who  retained  part  of  the  purchase-money  to 
await  the  event  of  the  ejectment  brought  by  Rebecca  Stedman. 
424 


June  15, 1829.]        OF   PENNSYLVANIA.  378 

[Seitzinger,  Administrator  of  Stroliecker,  for  the  use  of  Drinkel,  Administrator 
of  Garver,  v.  Weaver,  Administrator  of  Grant  ] 

A  suit  was  afterwards  commenced  by  Kremer  against  tiie  execu- 
tors of  Thomas  Grant,  in  which  a  judgment  was  confessed  ou 
certain  terms  of  compromise  between  the  parties,  in  full  satisfac- 
tion of  damages  on  the  warranty. 

The  following  were  the  reasons  filed  in  the  Circuit  Court  for 
a  new  trial : — 

"  1 .  Because  the  court  admitted  evidence  of  the  existence 
and  loss  of  the  article  of  agreement  declared  on,  upon  the  plea 
non  est  factum,  the  declaration  containing  a  lyrofert. 

***  2.  Because  the  court  admitted  the  deed  of  the  ^*o^.Q-^ 
executors  in  evidence,  no  connection  having  been  shown  L  J 
before  or  after  the  admission,  between  Daniel  Stroliecker  and 
the  grantees  in  the  said  deed, 

"  3.  Because  the  estate  of  Thomas  Grant  could  be  made  liable 
in  no  other  way  upon  the  agreement,  than  by  proceeding  to 
prove  the  contract  under  the  act  of  assembly  providing  for  the 
proof  of  contracts  made  by  decedents. 

"  4.  Because  the  plaintiffs  showed  no  breach  of  the  acts  in 
the  articles  in  the  lifetime  of  Thomas  Grant,  or  afterwards,  and 
did  not  show  any  act  of  Thomas  Grant  incumbering  the  estate." 

And  because  the  court  erred  in  their  charge  to  the  jury  in  the 
following  particulars  : 

"1.  In  leaving  it  to  the  jury  to  infer,  that  the  eviction  of 
part  of  the  land  by  Rebecca  Stedman,  was  founded  on  the 
agreement  between  Thomas  Grant  and  James  Stedman,  the 
evidence  being  contrary. 

"2.  In  stating  to  the  jury,  that  the  words  'grant,  bargain, 
and  sell,'  in  the  articles  declared  on,  were  sufficient  to  sustain 
this  action. 

"  3.  In  stating,  that  the  articles  of  agreement  was  not  merged 
in  the  subsequent  deed  by  the  executors. 

"  4.  In  stating,  that  this  action  could  be  sustained  for  the  use 
of  Seitzinger,  administrator  of  Garver,  when  there  was  no  evi- 
dence whatever  of  any  connection  between  the  said  Garver  and 
Daniel  Stroliecker. 

"  5.  In  stating,  that  on  the  evidence  exhibited,  the  arrange- 
ment made  by  the  executors  of  T.  Grant  with  George  Kremer, 
and  the  confession  of  judgment  to  Kremer  in  satisfaction  of  the 
warranty,  amounted  to  nothing. 

"  6.  In  stating,  that  the  article  declared  on,  was  a  deed  within 
the  provisions  of  the  act  of  assembly,  and  not  merely  an  execu- 
tory contract. 

"  7.  In  instructing  the  jury,  that  the  measure  of  damages  was 
the  purchase-money  of  tlie  land,  with  interest  on  the  same  from 
the  time  of  eviction. 

425 


379  SUPREME   COURT  [Sunhury, 

[Seitzinger,  Administrator  of  iStrohecker,  for  the  use  of  Drinkel,  Administrator 
of  Garver,  v.  Weaver,  Administrator  of  Grant.] 

"  8.  In  saying  the  plaintiffs  could  recover  in  this  action, — and 
because  the  verdict  was  agaiust  law  and  evidence." 

GreefT  and  Marr,  for  the  appellant.  1.  A  lost  instniment 
must  be  declared  on  as  such.  It  was,  therefore,  improper,  where 
the  declaration  was  upon  the  instrument  itself,  of  which  profert 
was  made,  and  the  plea  was  non  est  factum,  to  permit  evidence 
to  be  given  of  its  contents.  On  these  pleadings  the  agreement 
itself  ought  to  have  been  produced.  1  Phil.  Ev.  349,  404 ;  1 
Chit.  PI.  349,  350 ;  1  Sauud.  9,  a.  note. 

2.  The  article  declared  on  was  an  executory  contract,  which 
appears  to  have  been  rescinded.  There  was  no  privity  of  con- 
tract between  John  Strohecker,  John  Garver,  and  Thomas 
r*'^80"I  ^^^°*j  ^^^  *any  evidence  of  any  authority  in  Daniel 
*-  -•  Strohecker  to  bind  them ;  and  if  the  article  was  not 
binding  on  them,  it  could  not  be  binding  on  Grant  as  relates  to 
them.     Bellas  v.  Hays,  5  Serg.  &  Rawle,  427. 

3.  The  acceptance  of  a  deed  was  a  satisfaction  of  the  arti- 
cles, and  a  waiver  of  all  the  covenants  they  contained.  The 
money  was  not  paid  on  the  articles,  but  on  the  deed  from  the 
executors.  Crotzer  v.  Russell,  9  Serg.  &  Rawle,  78  ;  Share  v. 
Anderson,  7  Serg.  &  Rawle,  60 ;  M'Dowell  v.  Cooper,  14  Serg. 
&  Rawle,  299. 

4.  The  act  of  assembly  of  the  28th  of  May,  1715,  sect.  6, 
Purd.  Dig.  163,  making  the  words  grant,  bargain,  and  sell, 
amount  to  an  express  covenant  on  the  part  of  the  grantor, 
clearly  relates  to  deeds  executed,  and  does  not  embrace  con- 
tracts merely  executory.  If  the  article  amounted  to  a  deed, 
there  was  no  necessity  to  stipulate  in  it  for  a  deed.  The  author- 
ities are  numerous,  that  such  an  agreement  is  not  a  conveyance 
and  does  not  divest  the  legal  title.  At  common  law  there  was 
no  covenant  implied  in  the  conveyance  of  the  fee  simple,  and 
the  act  of  assembly  was  designed  to  place  such  an  estate  on  a 
footing  with  less  estates,  in  respect  to  which  the  implied  cove- 
nant runs  with  the  land,  and  is  one  of  warranty,  broken  only 
on  eviction,  and  giving  an  action  only  to  the  party  entitled  to 
the  enjoyment  of  the  land,  who  in  this  case  was  Kremer. 
Lessee  of  Stouffer  v.  Coleman,  1  Yeates,  393 ;  Lessee  of  Sher- 
man V.  Dill,  4  Yeates,  295  ;  Lessee  of  Maus  v.  Montgomery,  11 
Serg.  &  Rawle,  329;  Co.  Litt.  384,  a;  Lessee  of  Gratz  v. 
Ewalt,  2  Binn.  95 ;  Sugd.  400.  After  Grant's  death  his  estate 
could  be  bound,  and  advantage  taken  of  his  covenants  only  by 
having  the  contract  executed  under  the  act  of  assembly,  to  ena- 
ble executors  and  administrators,  by  leave  of  court,  to  convey 
lands  contracted  for  with  their  decedents.     The  words  grant, 

426 


/wncl5,1829.]        OF  PENNSYLVANIA.  380 

[Seitzinger,  Administrator  of  Strohecker,  for  the  use  of  Drinkel,  Administrator 
of  Garver,  v.  Weaver,  Administrator  of  Grant.] 

bargain,  and  sell,  raise  a  covenant  against  incumbrances  suffered 
by,  and  for  quiet  enjoyment  against  the  grantor  and  those 
claiming  under  him.  Here,  the  evidence,  if  it  proved  anything, 
proved  a  breach  of  the  covenant  for  quiet  enjoyment,  but  it  was 
defective  in  not  showing  an  eviction.  Spencer's  case,  3  Co. 
Rep.  17  ;  7  Johns.  Rep.  258  ;  3  Johns.  Rep.  472.  There  must 
be  a  special  eviction,  and  it  must  be  declared  on  as  such.  The 
evidence  did  not  show,  that  the  eviction  was  under  agreement 
between  Grant  and  James  Stedman  ;  nor  was  there  anything  to 
show,  in  what  manner  Rebecca  Stedman  recovered.  The  prop- 
erty was  conveyed  to  Kremer,  who  alone  could  sustain  an  action, 
and  who  was  liable  for  the  purchase-money,  if  he  colluded  with 
Grant.  Cro.  Eliz.  863 ;  3  Com.  Dig>  262 ;  Co.  Lit.  385,  b ;  1 
Church's  Dig.  311,  No.  22;  Id.  312,  No.  26;  13  Johns.  Rep. 
235. 

5.  The  measure  of  damages  was  wrong.  More  than  the 
price  paid  for  the  land  cannot  be  recovered,  but  less  may.  All 
that  the  plaintiff  has  lost  is  the  purchase-money  Kremer  was 
to  pay. 

Greenough  and  Biddle,  for  the  appellee. — 1.  The  first  point 
*made  for  the  appellant  is  purely  technical ;  and  when  r:j:qoi-i 
justice  has  been  done,  the  court  will  not  disturb  the  ver-  ■-  ^ 
diet  for  a  matter  of  mere  form. 

2.  The  covenants  contained  in  the  articles  of  agreement  were 
not  merged  in  the  deed.  All  parties  were  deceived  in  supposing 
the  executors  had  a  right  to  execute  the  contract  of  their  testa- 
tor. The  legal  presumption,  perhaps,  is,  that  the  acceptance  of 
a  deed  waives  the  covenants  contained  in  the  articles ;  but  where 
the  parties  act  under  misconception,  and  the  intention  is  clearly 
otherwise,  as  it  was  in  this  case,  that  presumption  is  rebutted. 
Crotzer  v.  Russell,  9  Serg.  &  Rawle,  78  ;  Anderson's  Executors 
V.  Long,  10  Serg.  &  Rawle,  55 ;  McDowell  v.  Cooper,  14  Serg. 
&  Rawle,  296 ;  Houghtaling  v.  Lewis,  10  Johns.  297 ;  Bender 
V.  Frombefger,  4  Dall.  436 ;  Lessee  of  Sherman  v.  Dill,  4 
Yeates,  295.  The  article  vested  an  estate  in  the  land,  and  is 
within  the  act  of  assembly.     Neave  v.  Jenkins,  2  Yeates,  107. 

3.  The  covenant  implied  from  the  words  grant,  bargain,  and 
sell,  does  not  run  with  the  land.  It  is  not  for  quiet  enjoyment, 
or  of  general  warranty,  but  a  covenant  that  the  grantor  has  not 
done  any  act,  nor  created  any  incumbrance  by  which  the  estate 
granted  by  him  may  be  defeated.  This  covenant  was  broken  as 
soon  as  it  was  made,  and  an  eviction  was  not  necessary  to  sup- 
port an  action.     Lessee  of  Gratz  v.  Ewalt,  2  Binn.  95 ;  4  Com. 

427 


381  SUPREME  COURT  [Sunlmry, 

[Seitzinger,  Administrator  of  Strohecker,  for  the  use  of  Drinkel,  Administrator 
of  Garver,  v.  Weaver,  Administrator  of  Grant.] 

Dig.  tit.  Guarantee ;  2  Mass.  Rep.  433  ;  14  Johns.  248  ;  4  Am. 
Dig.  504,  No.  72 ;  4  Johns.  Rep.  89,  93. 

4.  The  vahie  of  the  property  at  the  time  of  sale,  was  the 
proper  measure  of  damages.  Bender  v.  Fromberger,  4  Dall. 
444 ;  Delavergne  v.  Norris,  7  Johns.  358  ;  Pitcher  v.  Livingston, 
4  Johns.  1 ;  Morris  v.  Phelps,  5  Johns.  49 ;  9  Johns.  324 ;  3 
Caines,  111. 

The  opinion  of  the  court  was  delivered  by 

Gibson,  C.  J. — Thomas  Grant  articled  with  Daniel  Strohecker 
for  the  sale  of  a  tract  of  land  ;  and,  having  received  an  incon- 
siderable part  of  the  purchase-money,  died  without  having  exe- 
cuted a  conveyance.  Daniel  took  no  other  step  to  complete  the 
purchase ;  but,  John  Strohecker,  his  father,  and  John  Garver, 
his  father-in-law,  paid  the  residue  of  the  purchase- money,  took 
a  conveyance  to  themselves  with  general  warranty  from  Grant's 
executors,  who  were  empowered  to  sell,  but  only  for  payment  of 
debts  and  education  of  the  children  ;  and,  afterwards  divided  the 
land  between  them.  Garver  died,  and  his  heirs  conveyed  with 
general  warranty  to  George  Kremer,  who  retained  a  part  of  the 
purchase-money  to  await  the  event  of  an  ejectment  brought  by 
Rebecca  Stedman,  by  whom  a  part  of  the  land  has  since  been 
evicted  on  title  derived  from  Grant.  The  plaintiff  had  recourse, 
in  the  first  instance,  to  the  warranty  of  Grant's  executors ;  but 
r*'?«9l  ^^ving  ascertained  that  it  bound  *the  executors  })er- 
•-  -I  sonally,  and  not  the  estate,*  he  has  brought  this  action 
in  the  name  of  Daniel  Strohecker,  on  the  covenant  implied 
from  the  words  grant,  bargain,  and  sell,  in  the  articles  of  agree- 
ment. 

It  is  insisted  that  the  act  of  assembly,  by  force  of  which  puch 
a  covenant  can  be  implied,  is  applicable  only  to  conveyances 
executed.  No  express  provision  to  that  effect  is  found  in  the 
act  itself;  and  there  certainly  is  nothing  in  the  nature  of  an 
executory  contract  to  call  for  such  a  construction.  Where  the 
vendee  has  done  everything  on  his  part  to  entitle  him  to  the 
estate,  the  articles  are  an  equitable  conveyance  of  the  title;  and 
therefore  fall  within  the  letter,  as  M^ell  as  the  spirit  of  the  enact- 
ing clause.  He  sometimes  obtains  no  other  title,  and  for  that 
reason  alone,  the  law  ought  to  be  construed  liberally  for  his  pro- 
tection. Where  a  sound  price  has  been  paid  for  an  unsound 
title,  I  see  no  objection  on  this  ground,  to  its  being  recovered 
back. 

It  has  also  been  urged,  that  the  implied  covenant  is  a  special 


*  See  16  Serg.  &  Kawle,  237. 

428 


/i*nel5,1829.]       OF   PENNSYLVANIA.  382 

[Seitzinger,  Administrator  of  Strohecker.  for  the  use  of  Drinkel,  Administrator 
of  Garver,  v.  Weaver,  Administrator  of  Grant.] 

warranty,  which  runuing  with  the  land,  and  being  broken  only 
on  eviction,  gives  a  right  of  action  only  to  Kremer,  with  whom 
Grant's  representatives  have  cora})romised.  From  expressions 
used  by  Judge  Yeates  and  Judge  Brackenridge,  in  the  Lessee  of 
Gratz  V.  Ewalt,  2  Binn.  95,  I  first  inclined  to  think,  that  such 
had  been  the  contemporaneous  construction  ;  but  having  taken 
occasion  since  the  last  term  to  consult  most  of  the  ancients  of 
the  profession  remaining  at  the  bar,  I  have  not  ascertained  that 
any  particular  opinion  on  the  subject  has  generally  prevailed. 
In  the  case  just  alluded  to,  the  inquiry  was  not  into  the  nature 
of  the  covenant,  but  its  extent ;  and  it  was  inadvertently  called 
a  special  warranty,  doubtless,  because  every  other  covenant  to 
secure  the  enjoyment  of  land  having  fallen  into  disuse,  the  term 
was  used  generically.  There  is  nothing  then,  in  the  way  of  the 
meaning  of  the  legislature,  as  ex])lained  by  itself,  that  "the 
words  grant,  bargain,  and  sell,  shall  be  adjudged  an  express 
covenant  to  the  grantee,  his  heirs  and  assigns,  to  wit :  That  the 
grantor  was  seized  of  an  indefeasible  estate  in  fee  simple,  freed 
from  incumbrances  done  or  suffered  by  the  grantor ;  as  also,  for 
quiet  enjoyment  against  the  grantor,  his  heirs  and  assigns."  By 
this,  it  was  evidently  intended  to  give  the  vendee  the  benefit  of 
the  distinct  covenants — a  covenant  of  seisin  as  regards  defeasi- 
bility  from  the  acts  of  the  vendor,  and  a  covenant  for  quiet 
enjoyment  against  disturbance  by  the  vendor  or  those  claiming 
under  him.  But  this  special  covenant  of  seisin  is  broken  by  the 
existence  of  an  incumbrance  created  by  the  vendor,  the  instant  it 
is  sealed  and  delivered.  Funk  v.  Voneida,  1 1  Serg,  &  Rawle,  109. 
Now,  every  burden  on  the  estate,  or  clog  on  the  title,  such  as  a 
term  for  years,  or  grant  by  copy  of  court  roll,  is  an  incumbrance, 
(Vin.  tit.  Incumbrance,  *a),  and  the  equity  created  by  r*qoo-| 
the  sale  to  Stedman,  was  an  incumbrance  on  the  legal  L  '  -I 
estate  in  the  hands  of  Grant,  which  rendered  it  defeasible  in  the 
hands  also  of  the  subsequent  vendee,  who  would  therefore  be  en- 
titled to  an  action  to  regain  the  purchase-money. 

Minor  points  have  been  argued,  which  it  is  unnecessary  to  con- 
sider, as  there  is,  it  seems  to  me,  at  least,  one  decisive  objection 
to  a  recovery.  It  is  this  :  the  contract  between  Grant  and  Dan- 
iel Strohecker  was  abandoned,  and  the  money  now  sought  to  be 
recovered  back,  paid  on  a  different  contract  between  other  par- 
ties. If  the  administrator  of  Daniel  Strohecker,  in  whose  name 
suit  is  brought,  has  not  a  cause  of  action,  neither  has  the  person 
whose  name  is  marked  as  the  equitable  plaintiff,  only  to  desig- 
nate him  as  the  party  to  receive  whatever  the  legal  plaintiff  nuiy 
recover.  But  Daniel  neither  obtained  a  conveyance,  nor  enti- 
tled himself  to  one  by  payment  of  the  purchase-money.     The 

429 


383  SUPREME  COURT  [Sunbury, 

[Seitzinger,  Administrator  of  Strohecker,  for  the  use  of  Drinkel,  Administrator 
of  Garver,  v.  Weaver,  Administrator  of  Grant.] 

estate,  legal  or  equitable,  never  was  in  him  ;  and  his  administra- 
tor, therefore,  cannot  have  an  action  for  a  defect  of  title  which 
was  no  prejudice  to  his  intestate,  and  to  recover  back  purchase- 
money  which  his  intestate  never  paid.  But  if  he  cannot  recover, 
neither  can  the  equitable  plaintiff,  who  claims  under  him  as  an 
equitable  assignee.  Take  it,  however,  that  his  father  and  his 
father-in-law,  furnished  the  money  on  Daniel's  account,  and  that 
the  title  was  made  to  them  with  his  assent :  still  the  objection 
remains.  By  putting  themselves  in  his  stead,  both  he  and  they 
resigned  the  benefit  of  the  implied  covenant,  inasmuch  as  they 
cannot  sue  in  the  name  for  what  is,  both  at  law  and  in  equity, 
an  injury  not  to  him  but  to  them.  But  could  they  introduce 
themselves  into  the  contract  without  the  assent  of  Grant,  or  some 
one  authorized  to  assent  for  him?  I  shall  attempt  to  show,  that 
the  executors  had  no  authority  to  assent.  But,  as  I  have  already 
intimated,  Grant's  contract  was  with  Daniel  Strohecker  alone ; 
and  no  one  else  could  be  introduced  into  it,  without  his  assent, 
so  as  to  produce  a  personal  responsibility  on  his  part,  or  a  rep- 
resentative responsibility  on  the  part  of  his  executors ;  for  no 
principle  is  better  established,  than  that  a  decedent's  estate  can 
be  charged  only  on  a  liability  created,  immediately  or  remotely, 
by  himself.  If  the  executors  have  altered  the  contract,  it  is  not 
that  to  which  their  testator  assented,  and  they  can  be  made  to 
respond  on  it,  only  in  their  individual  capacity,  the  estate  being 
liable  to  refund  to  them  whatever  the  transaction  added  to  the 
assets.  There  was  then,  in  the  first  place,  the  introduction  of 
new  parties  in  the  place  of  the  vendee.  But  there  was  also  the 
introduction  of  new  parties  in  the  place  of  the  vendor,  and  with- 
out his  assent ;  for,  it  seems  to  me,  the  executors  had  no  author- 
ity to  perfect  the  contract,  under  the  will.  They  were  author- 
ized "  to  sell  and  convey  for  payment  of  debts  and  education  of 
the  children  ; "  but  the  execution  of  such  a  power,  is  an  entirely 
distinct  thing  from  the  completion  of  a  contract  made  by  the 
testator  himself.  If  the  executors  could  convey  in  this  instance, 
they  might  do  so  where  all  the  purchase-money  but  a  shilling 
P^ooj^-i  had  *been  paid,  although  the  transaction  could  with  no 
'-  -■  propriety  be  said  to  be  a  sale  for  the  payment  of  debts  or 
education  of  the  children.  Here  a  portion  of  the  purchase- 
money  was  in  fact  paid ;  and,  as  regards  that  portion,  the  con- 
veyance was  not  a  sale  in  execution  of  the  power.  But  the  con- 
veyance could  not  be  void  in  part,  and  good  for  the  residue ; 
because,  the  act  was,  in  its  nature,  incapable  of  apportionment. 
The  power  was  a  naked  one,  and  without  interest ;  and,  there- 
fore, to  be  construed  strictly,  1  Ves.  306,  2  Ves.  69  :  conse- 
430 


Junel5,lS29.]      OF   PENNSYLVANIA.  384 

[Seitzingcr,  Administrator  of  Strohecker,  for  the  use  of  Drinkel,  Administrator 
of  Garver,  v.  Weaver,  Administrator  of  Grant.] 

quently,  it  is  in  this  instance  applicable  only  to  a  sale  in  the 
popular  sense  of  the  word.  But  there  is  a  substantial  difference 
in  this  respect,  between  a  sale  by  the  executors  and  a  sale  by  the 
testator  himself.  Of  the  circumstances  attending  the  latter  they 
may  be  ignorant,  and,  therefore,  incompetent  to  judge  whether 
the  purchaser  is  entitled  to  have  the  contract  executed  ;  and  the 
parties  to  be  affected  are  consequently  entitled,  not  only  to  have 
it  proved,  according  to  the  act  of  assembly,  but  the  judgment  of 
the  court  as  to  its  sufficiency.  It  seems  to  me,  therefore,  the 
original  contract  could  be  perfected  only  by  the  adjudication  of 
the  court ;  and,  pursuant  to  that,  the  executors  could  have  con- 
veyed to  none  but  the  original  purchaser.  We  have,  then,  the 
case,  not  only  of  vendees  who  had  no  right  to  become  parties, 
to  the  original  contract,  but  also  of  vendors  equally  destitute  of 
such  a  right.  In  what  light  did  these  parties  themselves  view 
the  transaction  ?  Undoubtedly,  as  a  new  purchase.  There  was 
an  entire  departure  from  the  contract  in  the  articles.  The 
money  was  paid,  not  on  the  articles,  but  on  a  conveyance  to 
persons  who  were  not  entitled  under  the  articles ;  and,  under 
the  guarantee,  not  of  the  implied  covenant  in  the  articles,  but 
of  the  personal  covenant  of  the  grantors.  The  original  contract 
was  evidently  abandoned,  (possibly  because  it  was  not  thought 
prudent  to  vest  the  title  in  Daniel,)  and  a  netv  one,  in  substance 
a  sale,  framed  on  the  basis  of  it,,  by  which  alone  the  executors 
had  power  to  convey  a  title. 

But  even  if  the  contract  were  not  changed,  and  the  convey- 
ance were  taken  to  have  been  in  execution  of  the  articles,  (the 
grand  postulate  of  the  plaintiff's  argument,)  it  would  leave  him 
exposed  to  a  rule  of  law,  which  would  be  fatal  to  his  claim. 
The  presumption  of  law  is,  that  the  acceptance  of  a  deed  in 
pursuance  of  articles,  is  satisfaction  of  all  previous  covenants ; 
and,  where  the  conveyance  contains  none  of  the  usual  covenants, 
the  law  supposes,  that  the  grantee  agreed  to  take  the  title  at  his 
risk,  or  else,  that  he  would  have  rejected  it  altogether.  This  is 
apparent  in  Howes  v.  Barker,  3  Johns.  506,  and  decisively  estab- 
lished by  Share  v.  Anderson,  7  Serg.  &  Ravvle,  43 ;  Crotzer  v. 
Russell,  9  Serg.  &  Rawle,  78,  and  Hough taling  v.  Lewis,  10 
Johns.  279.  Down  to  the  period  of  its  consummation,  an  ex- 
ecutory contract  is  subject  to  modification  ;  and,  where  an  act  is 
done,  which,  without  fraud  or  mistake,  is  tendered  on  the  one 
side,  and  accepted  as  full  performance  on  the  other,  it  r*ooK-| 
is  *not  competent  to  the  party  who  accepted,  to  allege  *-  -^ 
that  some  part  of  the  original  contract  remains  to  be  performed. 
Here  there  was  a  new  covenant  taken,  which  is  inconsistent  with 

431 


385  SUPllEME   COURT  [Sunbury, 

Seitzinger,  Administrator  of  Strohecker,  for  the  use  of  Drinkel,  Administrator 
of  Garver,  v.  Weaver,  Administrator  of  Grant. 

the  supposed  retention  of  the  old  one.  There  may,  undoubtedly, 
be  cases  where  the  acceptance  of  a  conveyance  will  be  but  a 
part  execution  of  the  articles,  as  in  Brown  v.  Moorhead,  8  Serg. 
&  Rawle,  569,  where  a  covenant  to  convey  a  particular  tract  of 
land,  and  also  to  cause  the  interest  of  a  third  person  in  another 
tract  to  be  conveyed,  was  held,  not  to  be  satisfied  by  a  convey- 
ance of  the  first  mentioned  tract.  But  to  rebut  the  presumj)tiou 
which  the  law  would  otherwise  make,  the  intention  to  the  con- 
trary must  be  clear  and  manifest.  The  case  of  Anderson  v. 
Long,  10  Serg.  &  Rawle,  55,  is  not  an  exception.  Thece  the 
articles  were  admitted  to  show,  not  an  unsatisfied  responsi- 
bility, but  the  consideration  of  the  bond  on  which  the  suit  was 
founded ;  and,  as  regards  the  stipulation,  that  the  debt  should 
not  be  demanded  without  six  months'  notice,  the  object  was  to 
show  fraud  or  mistake.  In  the  case  at  bar,  there  is  nothing 
to  oppose  the  presumption,  but  on  the  contrary,  a  strong 
circumstance  in  corroboration  of  it ;  and  it,  therefore,  seems 
to  me,  the  objection  to  the  verdict  on  this  ground,  is  insu- 
perable. 

The  root  of  the  error  is  to  be  found  in  the  supposition,  that 
the  covenant  of  the  executors  would  bind  the  estate  of  their 
testator.  Its  liability  could  be  preserved  only  by  provifig  the 
contract,  and  taking  a  conveyance  in  pursuance  of  an  adjudica- 
tion of  the  court,  in  which  the  operative  words  grant,  bargain, 
and  sell,  would  have  been  as  effectual  as  when  used  by  the  tes- 
tator. In  this  way,  or  in  pursuance  of  a  power  delegated  in  the 
will,  but  no  other,  could  the  executors  have  subjected  the  estate 
to  the  consequences  of  their  covenant ;  and,  in  this  way,  might 
the  purchasers  have  paid  their  money  on  the  credit  of  the 
estate :  they  chose  to  pay  it  on  a  covenant  which  pledged 
nothing  but  the  credit  of  the  executors,  and  the  mistake  is  in- 
curable. 

It  might  seem  to  admit  of  a  doubt,  whether  Daniel  Stroheck- 
er's  administrator  may  not  recover  back  that  part  of  the  pur- 
chase-money which  was  paid  in  the  lifetime  of  Grant.  A  deci- 
sive objection  is,  that  he  cannot  recover  for  what  was  no  injury 
to  him — a  defect  in  a  title,  which,  in  equity  or  at  law,  was  never 
conveyed  to  him.  His  remedy  was  on  the  covenant  to  convey, 
and  his  course  was  to  entitle  himself,  by  proving  the  contract, 
and  tendering  the  purchase-money ;  in  which  case,  had  the  ex- 
ecutors not  tendered  an  unexceptionable  title,  he  might  have 
recovered  against  them  for  rescinding  the  contract,  or  have 
accepted  the  title,  and  maintained  an  action  on  the  implied  cove- 
nant of  seisin  in  the  conveyance.  Instead  of  this  he  pursued  a 
432 


June  15,  IS^d.]       OF   PENNSYLVANIA.  385 

[Seitzinger,  Administrator  of  Stroliecker,  for  the  use  of  Drinkel,  Administratoi 
of  Garver,  v.  Weaver,  Administrator  of  Grant.] 

course  unauthorized  by  the  act  of  assembly,  and  precluded  him- 
self altogether. 

Tod,  J.,  and  Smith,  J.,  dissented. 

Judgment  reversed,  and  a  venire  facias  de  novo  awarded. 

Cited  by  Counsel,  5  Wh.  458 ;  3  W.-&  S.  230 ;  4  W.  &  S.  18 ;  7  W.  &  S.  203 ; 
1  Barr,  56 ;  2  Barr,  35  ;  7  Barr,  123  ;  IJ.  167  ;  2  H.  337  ;  4  C.  290;  7  C.  236  ; 
12  C.  97;  1  Wright,  326;  8  Wright,  394;  8  S.  483;  27  S.  141 ;  6  N.  374;  s.  0. 
6  W.  N.  C.  325  ;  5  O.  19  ;  s.  c.  12  W.  N.  C.  211. 

Cited  by  the  Court,  2  Penn.  R.  530 ;  3  Wh.  325 ;  9  W.  270 ;  3  C.  131 ;  8  C. 
20 ;  10  C.  427 ;  1  G.  137  ;  8  S.  485. 


*[SuNBURY,  June  15,  1829.]  [*386] 

Ripple  and  Others  against  Ripple  and  Others. 

APPEAL. 

The  laws  of  another  state,  a  member  of  the  Union,  are  to  be  proved  as  the 
laws  of  a  foreign  country. 

The  maxim  omnia  presumuntur  rite  esse  acta,  is  as  applicable  to  judicial  pro- 
ceedings in  such  a  state,  as  to  tliose  in  our  own. 

Those  who  take  an  estate  under  a  defective  conveyance,  are  estopped  from 
denying  its  validity. 

Although  land  devised  is  not  expressly  charged  with  the  maintenance  of 
infirm  children  of  the  testator,  yet,  if  such  an  intention  can  be  clearly  col- 
lected from  all  the  parts  of  tlie  will,  considered  in  reference  to  the  testator's 
circumstances,  the  charge  will  attach  u^jon  the  land,  and  follow  it  into  the 
hands  of  subsequent  j)urchasers. 

What  is  a  sufficient  notice  of  such  a  charge  to  affect  subsequent  purchasers. 

The  court  inclined  to  think,  that  paupers,  supported  by  the  township,  might 
unite  with  the  overseers  of  the  poor  in  an  ejectment ;  but  at  any  rate,  refused 
to  grant  a  new  trial  on  that  ground. 

Appeal  from  the  Circuit  Court  of  Huntingdon  county,  held 
by  Smith,  J.,  August  18th,  1828. 

The  action  removed  from  the  Court  of  Common  Pleas,  was  an 
ejectment  for  a  tract  of  land  in  Springfield  township,  brought 
by  Elizabeth  Ripple,  and  Catharine  Ripple,  and  the  overseers 
of  the  poor  of  Shirley  township  against  Peter  Ripple,  John 
Cook,  and  Charles  M'Gee.  The  two  women  were  idiots,  the 
daughters  of  Philip  Ripple,  and  were  supported  by  the  town- 
ship. Their  father  being  desirous  of  purchasing  the  tract  of 
land  in  question,  wrote  a  letter,  dated  February  8th,  1813, 
directed  to  his  brothers-in-law,  John  Shaver  and  Peter  Shaver, 
sons  of  Nicholas  Shaver,  who  had  been  owner  of  the  property, 
intimating  his  desire  to  make  the  purchase,  and  authorizing  his 
son  John,  the  bearer  of  the  letter,  to  conclude  the  bargain ; 

VOL.  J.— 28  433 


386  SUPREME  COURT  [Sunbury, 

[Ripple  and  others  v.  Eipple  and  others.] 

but,  before  the  return  of  the  son,  the  father  sickened  and  died. 
His  will  bore  date  February  15th,  1813,  and  appeared  to  have 
been  proved  on  the  twenty-third  of  the  same  month,  in  the 
County  Court  of  Jefferson  county,  Virginia,  where  the  testator 
resided.  The  probate  was  certified  by  the  clerk  of  the  court, 
under  his  official  seal,  and  the  presiding  justice  of  the  same 
court,  certified  under  his  hand  and  seal,  that  the  individual 
was  clerk  of  the  said  court,  and  that  his  attestation  was  in  due 
form  of  law. 

The  will,  so  far  as  it  is  material  to  the  present  case,  was  in 
these  words  : — "  First.  It  is  my  will,  and  I  desire  that  the  arti- 
cles of  agreement  that  I  entered  into  with  George  Reynolds, 
Sen.,  on  the  8th  day  of  February,  1813,  for  the  premises  I  live 
on,  and  the  other  articles  therein  mentioned,  shall  be  complied 
with  by  my  executors  hereinafter  mentioned. 
r*'^871  *"-?i!«wi.  And  if  my  son  John  should  have  articled 
L  -'  for  the  land  that  belonged  to  my  father-in-law,  accord- 
ing to  a  letter  I  wrote  to  the  executors  of  his  estate,  it  is  my 
will,  that  the  title  is  to  be  made  in  manner  and  form  as  follows, 
that  is,  if  he  has  articled  for  the  two  places  I  wrote  to  them  I 
wished  to  purchase,  the  tract  on  which  my  father-in-law  lives ; 
it  is  my  will  that  the  title  should  be  made  to  my  sons  John  and 
Philip ;  the  title  for  one-fourth  part  of  the  said  tract,  at  the 
upper  end,  is  to  be  made  to  my  son  John,  his  heirs  and  assigns 
forever,  and  the  other  three  parts  is  to  be  made  to  my  son 
Philip,  his  heirs  and  assigns,  forever.  And  my  son  John  is  to 
pay  two  hundred  and  eighty  pounds  towards  the  said  lands ; 
and,  my  son  Philip  is  to  keep  and  provide  for  my  beloved  wife, 
and  my  two  eldest  daughters,  Catharine  and  Elizabeth,  during 
their  natural  lives.  And  my  son  John  is  to  have  my  wife's 
share  of  her  father's  movable  estate,  to  be  paid  in  part  of  the 
two  hundred  and  eighty  pounds  that  he  is  to  pay  towards  the 
said  land.  It  is  my  will,  that  if  my  son  John  has  articled  for 
the  other  place,  directed  in  my  letter,  the  title  for  the  said  lands 
is  to  be  made  to  my  sons  Peter  and  Lewis,  them  and  their  heirs 
and  assigns,  forever.  And  the  said  Peter  and  Lewis  is  to  pay 
my  youngest  daughter,  Susanna,  eighteen  pounds  every  year, 
until  she  arrives  to  the  age  of  eighteen  years ;  my  sons  Peter 
and  Lewis  is  to  pay  three  hundred  pounds  to  her,  her  heirs,  and 
assigns ;  and,  if  the  last-mentioned  tract  should  not  be  pur- 
chased, the  money  left  of  my  estate,  after  paying  for  the  first- 
mentioned  tract,  is  to  be  equally  divided  between  my  sons  Peter 
and  Lewis,  and  my  daughter  Susanna ;  and  if  neither  of  the 
tracts  are  not  purchased  by  my  son,  according  to  my  letter,  the 
articles  first-mentioned  between  me  and  Reynolds,  is  to  be  null 
and  void  ;  and  the  place  whereon  I  now  live,  is  to  be  held  by  my 
434 


June  15, 1829.]      OF   PENNSYLVANIA.  387 

[Eipple  and  others  v.  Ripple  and  others.] 

beloved  wife  and  children  until  my  youngest  arrives  to  her  law- 
ful age,  and  then  it  is  my  will,  that  it  shall  be  sold  by  my  exec- 
utors, and  divided  as  follows,  in  the  manner  and  proportions  I 
had  allotted  the  lands  to  be  divided :  the  tract  on  which  my 
father-in  law  lived  was  supposed  to  contain  two  hundred  and 
sixty  acres,  at  eighteen  dollars  per  acre,  and  the  other  place 
was  supposed  to  contain  the  same  number  of  acres,  at  ten  dol- 
lars per  acre ;  and  if  my  son  should  have  made  the  purchase 
herein  mentioned,  it  is  my  will,  that  all  my  movable  property 
shall  be  sold,  excepting,  &c.,  and  the  money  arising  from  the 
sale  of  my  movable  property,  is  to  pay  my  debts,  and  the 
residue,  if  any,  after  my  debts  are  paid,  is  to  be  appropriated  to 
the  paying  for  the  lands  herein  mentioned.  It  is  my  will,  and 
also  ray  meaning,  that  the  place  whereon  I  now  live,  is  to  be 
held  under  the  above  conditions,  (that  is  to  say,)  that  my  son 
Philip  is  to  work  the  land,  and  pay  a  rent  of  one-third,  for  the 
use  of  my  beloved  wife  and  three  daughters  herein  named.  It 
is  my  will,  that  Martin  Bellmire  and  George  Reynolds,  Jr.,  be 
my  executors,"  &c. 

An  article  of  agreement,  dated  February  8th,  1813,  between 
Peter  *Shaver  and  John  Shaver  of  the  one  part,  and  r*ooo-| 
Philip  Ripple  of  the  other,  (not  signed,)  for  the  sale  of  '-  -■ 
the  premises  in  question,  was  next  given  in  evidence,  though  ob- 
jected to  by  the  defendants'  counsel.  After  the  death  of  old 
Philip  Ripple,  an  agreement  for  the  sale  of  the  place,  was  entered 
into  between  P.  and  J.  Shaver,  as  administrators  of  Nicholas 
Shaver,  and  Martin  Bellmire  and  George  Reynolds,  executors 
of  Philip  Ripple,  dated  March  3d,  1813,  the  reading  of  which 
was  objected  to  by  the  defendants,  but  admitted  by  the  court. 
The  purchase-money  was  paid  by  the  executors  of  Philip  Ripple 
to  the  administrators  of  Nicholas  Shaver,  whose  heirs  afterwards, 
in  pursuance  of  the  last-mentioned  agreement,  executed  a  deed 
for  the  premises  to  Philip  Ripple,  the  devisee.  Philip  Ripple 
leased  the  property  to  Peter  Ripple,  who  was  "  to  keep  the  two 
girls,  Catharine  and  Elizabeth  Ripple."  On  the  4th  of  INIarch, 
1820,  judgment  was  obtained  by  one  John  Borker  against  Philip 
Ripple,  son  of  the  testator ;  and,  on  the  20th  of  May,  in  the 
same  year.  Cook  and  M'Gee  also  obtained  judgments  against 
him,  on  which  they  proceeded  to  execution  and  sale,  became 
the  purchasers,  and  received  a  deed-poll  from  the  sheriff. 
Notice  was  publicly  given  at  the  time  of  the  sale,  and  previously 
to  it,  that  the  land  was  liable  to  the  maintenance  of  the  two 
females.  The  manner  in  which  notice  was  given,  is  stated  by 
the  Chief  Justice,  in  giving  the  opinion  of  the  court,  and,  there- 
fore, need  not  be  repeated  here. 

Several  exceptions  were  taken  to  the  charge  of  His  Honour, 

435 


388  SUPREME  COURT  [Bwnlmry, 

[Ripple  and  others  v.  Bipple  and  others.] 

as  well  as  to  the  admission  of  certain  parts  of  the  evidence. 
The  jury  found  a  verdict  for  the  plaintiffs,  "to  be  released  on 
the  payment  of  six  hundred  and  forty-one  dollars  and  ninety- 
nine  cents,  already  expended  in  the  support  of  Catharine  and 
Elizabeth  Ripple,  and  on  the  maintenance  and  support  of  the 
said  Catharine  and  Elizabeth  by  the  defendants,  John  Cook  and 
Charles  M'Gee." 

After  an  ineffectual  attempt  to  obtain  a  new  trial,  the  de- 
fendants appealed  to  this  court,  where  Miles,  for  the  appellant, 
contended,  that  the  will  of  Philip  Ripple  was  improperly  ad- 
mitted in  evidence.  Our  act  of  assembly  requires,  that  the  pro- 
bate of  a  will,  executed  out  of  the  state,  shall  be  made  before 
persons  having  autliority  to  take  probates  of  wills,  &c.,  and  it 
was  not  shown,  as  it  ought  to  have  been,  that  the  court  of  Jef- 
ferson county  had  any  such  authority. 

2d.  The  articles  of  agreement  ought  not  to  have  been  received 
in  evidence.  It  did  not  appear  that  Peter  Shaver  and  John 
Shaver,  administrators  of  Nicholas  Shaver,  had  any  authority 
as  such,  to  pass  the  land  to  any  person  whatever.  The  will  of 
Philip  Ripple  was  not  to  operate  upon  the  land,  unless  his  son 
John  had  entered  into  valid  articles  for  the  purpose,  prior  to 
the  death  of  the  testator. 

3d.  The  will  is  not  sufficient  to  charge  the  land  in  the  hands 
of  Philip-    No  provision  is  made  out  of  the  land  as  a  fund. 

4th.  The  notice  at  the  time  of  the  sheriff's  sale  was  insuffi- 
cient, not  having  come  from  the  very  party  in  interest.  Sugd. 
on  Vend.  532.  But  if  the  notice  were  given  by  the  proper  par- 
r**^«ol  ^^^^'  ^*  ^^^^  ^^^  *full  and  sufficient.  Purd.  390;  4  Dall. 
L  J  320.  There  was  a  regular  chain  of  title  on  record,  of 
which  the  will  was  no  part ;  and,  therefore,  the  notice  was 
not  sufficient  to  lead  to  full  knowledge.  Peebles  v.  Reading,  8 
Serg.  &  Rawle,  495.  The  question  of  notice  is  matter  of  law. 
On  this  point  he  also  cited.  The  Bank  of  North  America  v. 
Fitzsimons,  3  Binn.  361  ;  Semple  v.  Burd,  7  Serg.  &  Rawle, 
291. 

5.  The  action  is  improperly  brought  in  the  names  of  the 
paupers,  and  of  the  overseers  of  the  poor.  After  the  paupers 
were  settled  in,  and  supported  by  the  township,  the  title  wholly 
vested  in  the  overseers  of  the  poor.  The  two  females  cannot 
support  an  action  jointly  with  the  overseers.     Purd.  683. 

Blanchard  and  Potter,  contra,  were  stopped  by  the  court. 

The  opinion  of  the  court  was  delivered  by 
Gibson,  C.  J. — The  certificate  of  the  presiding  justice  of 
Jefferson  county,  that  the  attestation  of  the  clerk  is  in  due 
436 


J"wnel5,1829.]      OF  PENNSYLVANIA.  389 

[Ripple  and  others  v.  Ripple  and  others.] 

form  of  law,  was  sufficient  to  introduce  the  exemplification 
of  the  will.  The  laws  of  Virginia  are  to  be  proved  as  the 
laws  of  a  foreign  country ;  but,  the  acts  of  the  courts  may, 
undoubtedly,  be  resorted  to  for  their  exposition.  To  the  act  of 
the  county  court,  in  holding  jurisdiction  of  the  subject  of  pro- 
bate, the  maxim  omnia  presumuntar  rite  esse  acta,  is  as  applic- 
able as  it  is  to  judicial  proceedings  in  our  own  state. 

The  articles  of  agreement  were  competent  evidence,  because 
they  constitute  a  part  of  the  title  under  which  all  parties  claim ; 
and  it  is,  therefore,  immaterial,  whether  the  executors  derived 
an  authority  to  complete  the  purchase  under  the  will.  Having 
ratified  their  acts  by  taking  the  estate  subject  to  the  provisions 
of  the  will,  Philip,  or  any  one  claiming  under  him,  is  estopped 
from  denying  their  authority. 

The  intention  to  charge  the  premises  with  the  maintenance  of 
the  testator's  daughters,  Catharine  and  Elizabeth,  although  not 
expressed  in  terms,  is,  nevertheless,  clear  and  satisfactory.  It  is 
to  be  collected  from  all  the  parts  of  the  will  considered  in  refer- 
ence to  the  testator's  circumstances.  Having  articled  for  the 
sale  of  the  mansion  place  in  Virginia,  he  sends  his  son  to  Penn- 
sylvania to  purchase  the  premises  in  dispute ;  but  before  his 
return,  sickens,  makes  his  will,  and  dies.  He  ]>rovides  contin- 
gently for  the  projected  purchase,  by  directing  his  executors,  in 
case  it  should  be  effected,  to  execute  the  contract  for  the  sale  of 
the  mansion  place ;  and  he  devises  the  premises  in  question  to 
his  son  Philip,  coupled  with  this  clause  : — "  My  son  Philip  is  to 
keej)  and  provide  for  my  wife  and  my  two  oldest  daughters, 
Catharine  and  Elizabeth,  during  their  natural  lives."  He  also 
provided  for  the  failure  of  the  contemplated  purchase,  by  forbid- 
ding the  executors,  in  that  event,  to  complete  the  sale  of  the 
mansion  place,  and  by  directing,  that  it  be  held  by  his  wife  and 
children  till  the  youngest  come  of  age,  Philip  working  the  land, 
and  rendering  a  third  of  the  produce  for  their  *use.  He  r^oofn 
further  directs  the  place  to  be  s6ld  when  the  youngest  L  J 
shall  have  come  of  age,  and  the  jiroceeds  to  be  distributed  in 
the  same  proportions,  and  among  the  same  persons  to  whom  the 
land  expected  to  be  purchased  by  his  son,  would  have  gone. 
Thus,  the  premises  in  dispute  were  to  be  a  substitute  for  the 
mansion  place,  which  was  expressly  charged  with  the  mainte- 
nance of  the  widow  and  children,  while  such  a  charge  should 
not  be  in  the  way  of  the  testator's  ulterior  arrangements  in 
respect  of  distribution.  But  as  regards  the  premises  in  dispute, 
there  are  no  arrangements  which  are  inconsistent  with  an  indefi- 
nite continuance  of  such  a  charge ;  and  there  is,  therefoi'e,  no 
reason  why  his  views  in  regard  of  the  premises,  should  be,  in 
any  respect,  different  from  those  he  entertained  in  regard  to  the 

437 


390  SUPREME   COURT  [Sunbw-y, 

[Kipple  and  others  v.  Kipple  and  others.] 

mansion  place.  The  gift  to  Philip  was  on  a  condition  which, 
in  consequence  of  its  very  nature,  adhered  to  the  land.  A 
legacy  may  undoubtedly  be  charged  on  the  land  by  implication, 
as  was  done  in  Nichols  v.  Postlethwaite,  2  Dull.  131  ;  Hassan- 
clever  t\  Tucker,  2  Binn.  526  ;  Witman  v.  Norton,  G  Biini.  395  ; 
and  Dobbins  v.  Stevens,  17  Serg.  &  Rawle,  13.  No  form  of 
words  is  necessary  to  produce  the  effect ;  and,  where  the  intent 
is  manifest,  courts  are  bound  to  carry  it  into  execution.  There 
were  powerful  motives  for  such  an  intention  here.  The  subse- 
quent insolvency  and  death  of  Philip,  have  shown,  that  his  per- 
sonal responsibility  would  have  l)een  an  unsafe  pledge  for  the 
performance  of  his  duties  to  his  sisters.  No  father  would  con- 
sent to  commit  the  maintenance  of  his  daughters,  in  all  the  help- 
lessness of  idiocy,  to  a  security  so  precarious. 

Pursuant  to  the  instructions  of  the  testator,  his  son  agreed 
with  the  vendors  on  the  terms  of  the  purchase,  but  did  not  enter 
into  articles  agreeably  to  the  letter  of  the  condition  on  which 
the  land  was  to  pass  by  the  will ;  and  it  was  nevertheless  agreed 
on  all  hands,  that  the  executors  should  complete  the  purchase  as 
if  articles  had  been  executed.  Accordingly,  they  paid  the  pur- 
chase-money, and  the  vendors  executed  a  conveyance  to  Philip, 
according  to  the  testator's  directions.  Hence,  as  the  defendants 
claiming  under  Philip,  derive  the  legal  estate  directly  from  the 
vendors,  and  not  through  the  will,  it  was  necessary  to  affect 
them  with  notice  of  the  equitable  incumbrance  of  the  daughters' 
maintenance.  To  this  end  it  was  proved,  that  an  uncle  of  the 
daughters,  and  an  inhabitant  actually  rated  in  the  township 
in  which  they  are  settled,  gave  actual  notice  to  one  of  them 
at  the  sale,  and  to  tlie  other  a  short  time  previous,  the 
third  being  merely  a  tenant.  In  addition,  it  was  shown, 
that  another  rateable  inhabitant  of  the  same  township,  had 
not  only  informed  them  of  the  existence  of  the  incumbrance, 
but  had  repeated  to  them  nearly  the  words  of  the  will  by 
which  it  was  created.  Now,  although  a  purchaser  may  dis- 
regard rumours,  set  afloat  by  those  who  have  no  right  to 
intermeddle,  he  is  bound  to  attend  to  the  admonitions  of  a 
party  in  interest.  Here  the  daughters,  although  actually 
r^oqi-|  charged  to  the  township,  had  an  interest  of  their 
•-  -■  *own,  from  attending  to  which,  they  were  disabled  by 
idiocy ;  and,  surely  one  so  near  in  blood  as  an  uncle,  might 
lawfully  interpose  for  their  protection.  The  overseers  may 
also  interpose ;  but,  as  they  may  be  ignorant  of  the  rights 
or  claims  of  the  paupers  committed  to  their  charge,  every 
rateable  inhabitant  has  an  interest  which  renders  him  com- 
petent to  act  in  the  matter  for  the  common  good.  The 
information  given  was  full,  direct,  explicit,  and  amply  suffi- 
438 


JxLue  15,  1829.]      OF   PENNSYLVANIA.  391 

[Ripple  and  others  v.  Ripple  and  others.] 

cient  to  put  the  purchasers  on  an  inquiry,  which,  had  it  been 
pursued,  would  have  terminated  in  a  perfect  knowledge  of  all 
the  circumstances. 

The  concluding  objection  is  to  the  joinder  of  the  overseers 
and  the  paupers  in  the  same  ejectment.  By  the  act  of  the 
29th  of  March,  1819,  overseers  of  the  poor  are  empowered 
to  recover  the  money,  or  other  property  of  paupers  committed 
to  their  charge,  for  the  purpose  of  applying  it  to  their  main- 
tenance ;  but  whether  in  their  corporate  name,  or  in  the  name 
of  the  pauper,  is  not  specified.  Perhaps  an  action  would  lie 
in  the  name  of  either.  But  it  is  said,  that  whichsoever  way 
it  be  taken,  there  cannot  be  an  action  in  the  names  of  both. 
By  the  act  of  the  31st  of  March,  1823,  it  is  provided  that 
in  ejectments  by  more  than  one,  a  plaintiff  failing  to  establish 
his  title,  may  become  nonsuit,  and  a  verdict  nevertheless  pass 
for  the  others.  Now  had  the  overseers  or  the  paupers  become 
nonsuit  here,  the  case  would  have  been  within  the  letter  of 
the  act.  Even  as  it  stands,  it  is  so  entirely  within  its  spirit, 
that  we  would  not  exercise  a  sound  discretion,  were  we  to 
say  it  is  unsustainable.  All  parties  are,  in  fact,  interested ; 
the  overseers,  in  the  application  of  the  property  in  case  of 
the  township ;  and  the  paupers  to  be  let  into  the  enjoyment 
of  their  father's  bounty.  They  have  thus  an  interest  in 
common,  which  entitles  them  to  the  possession.  But  were 
all  this  otherwise,  we  ought  not  to  use  our  discretion  so  as 
trip  up  the  parties  really  entitled,  on  a  trifling  objection  to  the 
form  of  the  action. 

Tod,  J.,  having  been  concerned  as  counsel,  took  no  part  in 
the  decision. 

Judgment  affirmed. 

Cited  by  Counsel,  3  Penn.  R.  69 ;  4  R.  444 ;  2  Wh.  146 ;  7  W.  157 ;  8  W. 
49;  3  W.  &  S.  371;  6  W.  &  S.  283;  I  H.  349;  7  C.  56 ;  10  C.  292;  11  C  56; 
12  C.  12 ;  2  G.  30 ;  2  S.  361 ;  6  S.  483 ;  11  S.  169,  482 ;  22  S.  489  ;  4  N.  349 ; 
10  N.  328,  s.  c.  7  W.  N.  C.  550 ;  14  N.  194,  306;  9  W.  N.  C.  312. 

Cited  by  the  Court,  3  R.  130;  2  W.  79 ;  7  W.  387 ;  9  W.511;  1  J.  89 ; 
2  J.  258 ;  12  Wr.  122 ;  22  S.  490 ;  2  N.  353,  s.  c.  4  W.  N.  C.  269 ;  4  N.  350, 
8.  c.  5  W.  N.  C.  304 ;  10  W.  N.  C.  267.  (As  to  proof  of  foreign  law)  12  H. 
446,  447 ;  2  C.  30 ;  9  W.  N.  C.  520. 


439 


391  SUPREME  CXDURT  [Sunbury, 


[StrJTBUBY,  June  16,  1829.] 

Milliken  and  Another  against  Brown. 

APPEAL. 

A  receipt,  not  under  seal,  to  one  of  several  joint  debtors,  for  his  proportion 
of  the  debt,  discharges  the  rest. 

Appeal  from  the  decision  of  the  Chief  Justice,  holding  a 
Circuit  Court  for  Mifflin  county,  on  the  15th  of  April,  1829. 

In  the  Court  of  Common  Pleas,  the  plaintiffs,  Foster  Milliken 
and  David  Milliken,  trading  under  the  firm  of  Foster  Milliken  & 

r*'^921  *^^-'  ^^^'  ^°  ^^®  '^^^  ®^  February,  1819,  recovered 
L  -■  judgment  against  John  Brown,  William  Brown,  Jr.,  and 
Dr.  John  Watson,  trading  under  the  firm  of  John  Brown  &  Co., 
by  award  of  arbitrators,  for  five  thousand  eight  hundred  and 
eighty-nine  dollars  and  ninety-six  cents.  In  order  to  obtain  the 
legal  stay  of  execution,  the  defendants  had  procured  security  to 
be  entered  for  the  debt,  interests  and  costs,  under  the  act  of  the 
21st  of  March,  1806.  But,  long  before  the  expiration  of  the 
stay,  David  Milliken,  one  of  the  plaintiffs,  had  issued  a  fieri 
fadas  upon  the  judgment,  on  which  a  return  of  "nulla  bona" 
was  made  by  the  sheriff  of  Mifflin  county.  Within  two  days 
after,  he  also  procured  a  testatum  fieri  faxnas,  directed  to  the 
sheriff  of  Lancaster  county.  With  this  testatum,  David  Milliken 
proceeded  to  Lancaster  county,  where  Dr.  Watson  resided. 
Upon  seeing  the  execution,  Watson  paid  to  Milliken  four  hun- 
dred dollars,  and  afterwards  sixteen  hundred  dollars  more,  and 
took  the  following  receipt,  viz. : 

"27th  of  March,  1819.— Received  of  Dr.  John  Watson,  four 
hundred  dollars,  in  part  of  a  judgment  Foster  Milliken  &  Co. 
V.  John  Brown  &  Co. 

"David  Milliken." 

"May  4th,  1819. — Received,  by  the  hands  of  Christian  Hal- 
deman,  from  Dr.  John  Watson^  sixteen  hundred  dollars,  a  balance 
of  two  thousand  dollars,  his  part  of  a  judgment  Foster  Milliken 
&  Co.  V.  John  Brown  &  Co.     For  Foster  Milliken  &  Co. 

"David  Milliken." 

The  consequence  of  this  proceeding  of  David  Milliken,  as  it 
respected  the  surety  in  the  recognisance,  and  the  ultimate  de- 
440 


June  16,  1829.]      OF  PENNSYLVANIA.  392 

[Milliken  and  another  v.  Brown.] 

cision  of  tliis  court  upon  it,  may  be  seen  in  tlie  case  of  Milliken 
and  others  v.  Brown,  10  Serg.  &  Rawle,  188. 

It  was  alleged,  that  the  taking  from  Watson  the  two  thousand 
dollars  in  full  of  his  third  of  the  debt,  operated  as  an  entire  dis- 
charge of  John  Brown  and  William  Brown,  Jr.,  and  upon  this 
ground  the  Court  of  Common  Pleas  opened  the  judgment  so  as 
to  let  in  a  defence.  Issue  was  joined  upon  the  plea  of  payment. 
A  release  was  also  pleaded,  to  which  there  was  a  replication  of 
Tion  est  factum.  The  defence,  upon  the  trial  in  the  Circuit 
Court,  was  carried  on  by  John  Brown  alone;  William  Brown,  Jr., 
having  confessed  judgment  for  one-third  of  the  claim,  on  an 
agreement,  that  no  effect  was  thereby  to  be  produced  on  the  case 
as  respected  John  Brown.  In  addition  to  the  facts  before  men- 
tioned, John  Brown  proved  upon  the  trial,  that  at  the  times  of 
the  return  of  the  nulla  bona  by  the  sheriff  of  Mifflin  county,  and 
of  taking  out  the  testatum  fieri  facias,  the  defendants  in  the 
judgment  owned,  and  were  in  possession  of  real  and  personal 
estate,  consisting  of  a  forge,  furnace,  stills,  &c.,  in  Mifflin  county. 
He  also  gave  in  evidence,  further  to  enforce  and  explain  the 
written  receipt,  the  deposition  of  Christian  Haldemau,  who  tes- 
tified as  follows : — 

*"27th  of  March,  1819,  Dr.  Watson  and  David  r*393-| 
Milliken  called  upon  the  witness,  and  Watson  stated  L  '  'J 
that  Milliken  had  an  execution  against  him,  Watson,  for  about 
six  thousand  dollars.  They  then  came  to  an  agreement,  and 
Dr.  Watson  agreed  to  pay  two  thousand  dollars,  his  part  of  the 
judgment,  and  that  four  hundred  dollars  was  paid  by  Watson  on 
that  day.  Watson  left  in  the  hands  of  the  witness  sixteen  hun- 
dred dollars,  to  be  paid  to  the  plaintiffs,  which  was  done  by  Mr. 
Elder  in  the  absence  of  the  witness,  &c." 

To  the  following  question  put  by  the  defendant : — "  Do  you 
remember  what  the  purport  of  the  verbal  agreement  was  between 
Dr.  Watson  and  David  Milliken  ?"  the  witness  answered  : — 
"  Dr.  Watson  was  to  pay  Milliken  four  hundred  dollars  then, 
and  sixteen  hundred  dollars  in  ten  or  fifteen  days :  if  Dr.  Wat- 
son would  do  that,  then  he,  David  Milliken,  would  exonerate 
him  from  his  part  of  the  judgment.  I  think  you  will  find  the 
receipt  to  say  the  same  thing,  or  words  to  that  effect."  Sun- 
dry cross-questions  were  put  by  the  plaintiffs,  which  are  not  ma- 
terial, except  that,  from  the  answer  to  one  of  them,  it  appeared, 
that  the  receipt  for  sixteen  hundred  dollars  had  been  drawn  up, 
or  the  form  for  it  given,  by  Watson  himself.  The  following 
questions  may  also  be  excepted  : — Question  8th.  "  At  the  time 
of  the  verbal  agreement  between  Dr.  Watson  and  Milliken,  did 
Milliken  say,  that  if  he  could  recover  the  balance  of  the  judg- 
ment from  the  property  of  the  company,  or  the  other  partners, 

441 


393  SUPREME  COURT  [Sunhury, 

[Milliken  and  another  v.  Brown.] 

he  would  not  look  to  Dr.  "Watson  for  it  ?"  Answer.  "  I  do  not 
know  of  any  such  agreement,  or  conversation."  Question  9th. 
"What  did  you  understand  by  the  word  exonerate,  as  applied 
to  the  verbal  agreement  between  Dr.  Watson  and  Milliken  ?" 
Answer.  "  I  considered  it  was  in  full  for  his  part  of  the  judg- 
ment for  about  six  thousand  dollars."  Question  10th.  "Did 
you  believe  that  it  was  intended  to  exonerate  either  John  Brown 
or  William  Brown,  Jr.  ?"  Answer.  "  I  did  not,  but  to  exonerate 
the  doctor  only." 

Upon  this  evidence  His  Honour,  the  Chief  Justice,  charged 
the  jury,  that  the  acts,  the  receipt  of  two  thousand  dollars,  and 
the  agreement  of  David  Milliken,  amounted  to  a  release  to  John 
Watson  and  to  the  present  defendant ;  and  that  in  point  of  law, 
the  plaintiff  could  not  recover.  The  verdict  being  for  the  de- 
fendant, a  motion  was  made  for  a  new  trial,  which  was  refused, 
and  this  appeal  thereupon  brought  by  the  plaintiffs,  alleging 
error  in  the  charge  of  the  Chief  Justice. 

Hole  and  Blythe,  for  the  appellants. — The  plaintiffs  might 
have  levied  their  whole  debt  upon  the  property  of  any  one  of 
their  joint  debtors,  and  in  receiving  a  part  from  one,  and  look- 
ing to  the  others  for  the  residue,  they  did  no  more  than  agree 
to  do  that,  which,  without  agreement  they  might  lawfully  have 
done.  Even  a  release  under  seal  to  one  of  two  obligors,  may 
not  in  equity  operate  as  a  discharge  to  the  other.  Parties  are 
bound  only  so  far  as  they  intend  to  be  so.  Kirby  v.  Taylor,  6 
Johns.  Ch.  Rep.  242.  But  it  is  settled  by  many  authorities, 
P^oQAi  that  anything  short  of  a  technical  *release  under  seal 
•-  -"to  one  of  several  joint  debtors,  does  not  exonerate  the 
rest.  The  ground  upon  which  the  old  cases  go  is,  that  a  tech- 
nical release  is  satisfaction,  but  a  receipt  of  less  than  the  whole 
debt,  without  a  release,  is  not  satisfaction.  Cumber  v.  Wane,  1 
Stra.  426.  A  receipt  in  full  is  not  conclusive,  but  may  be  ex- 
plained. Putnam  v.  Lewis,  8  Johns.  304.  And  if  a  note  of  a 
third  person  be  taken  for  goods  sold  and  delivered,  it  is  no  pay- 
ment, unless  the  vendor  specially  agrees  to  take  it  absolutely  aa 
such.  It  ought  to  have  been  left  to  the  jury  to  determine 
whether  the  money  was  received  in  satisfaction  of  the  debt. 
Johnson  v.  Weed,  9  Johns.  Rep.  310  ;  Tobey  v.  Barber,  5  Johns. 
Rep.  68.  A  receipt  for  part  of  the  debt  from  one  joint  debtor, 
and  an  agreement  not  to  look  to  him  for  the  remainder,  is  a 
covenant  not  to  sue,  and  not  a  release,  and,  therefore,  does  not 
discharge  the  other  joint  debtor.  A  release  of  one  must  be  a 
technical  release  under  seal,  in  order  to  discharge  both.  Rowley 
V.  Stoddard,  7  Johns.  Rep.  207 ;  Harrison  v.  Close,  2  Johns. 
Rep.  448  ;  17  Johns.  Rep.  174 ;  20  Johns.  Rep.  78,  462.  Here 
442 


/wnel5,1829.]       OF  PENNSYLVANIA.  394 

[Milliken  and  another  v.  Brown.] 

the  plaintiffs  did  not  even  discharge  Dr.  Watson ;  they  might 
still  have  gone  against  hira ;  but  admitting  he  was  discharged, 
there  was  nothing  in  the  agreement  to  prevent  either  of  the 
Browns  from  having  recourse  to  him,  in  the  event  of  their  being 
obliged  to  pay  the  money. 

Potter  and  Btanchard,  contra. — The  money  having  been  re- 
ceived from  Dr.  Watson  before  the  stay  of  execution  had  ex- 
pired, and  consequently  before  the  debt  was  payable,  there  was 
a  valuable  consideration  for  the  discharge,  though  it  was  not 
tinder   seal ;   for   it   is  well   settled,  that   payment   before  the 
day,  of  a  less  sum,  is  good  satisfaction.     Cro.  Eliz.  45  ;  Piuel's 
Case,  5  Co.  117.     A  release  to  one  of  two  joint  and   several 
obligors,  discharges  both.    5  Bac.  Ab.  713  ;  Co.  Lit.  232,  236  ; 
2  Salk.  374  ;  Needham's  Case,  8  Co.  270 ;  2  Roll.  411 ;  Hecki- 
note's  Case,  9  Co.  52;  Co.  Eliz.  161 ;  6  Cro.  218;  Barrington 
V.  The  Bank  of  Washington,  14  Serg.  &  Rawle,  425.     So  satis- 
faction received  from  one,  or  a  release  executed  to  one  of  several 
joint    trespassers    discharges   all,  though  the  liability  of  the 
others  be  specially  reserved.     Rulh  v.  Turner,  2  Hen.  &  Munf. 
38.     In  trespass  the  jury  cannot  sever  the  damages.     Hill  v. 
Goodchild,  5  Burr.  2792.     And  a  release  by  one  of  several 
partners  is  good  against  all.     Piersons  v.  Hooker,  3  Johns.  Rep. 
70.     Upon  the  same  principle,  that  satisfaction  from  one  joint 
and  several  debtor  exonerates  the  other,  a  judgment  obtained 
against  one  partner,  is  a  bar  to  a  suit  against  a  dormant  part- 
ner.    Smith  V.  Black,  9  Serg.  &  Rawle,  142.     The  judgment 
was  a  lien  on  the  property  of  the  partners.     The  execution 
could  not  have  been  levied  on  the  interest  of  the  two  Browns  in 
the  partnership  property,  for  instance,  in  the  stock  in  the  iron 
works  which  they  carried  on  as  partners.    Nor  could  a  scire  facias 
issue  on  the  judgment  against  the  two  Browns  omitting  Watson. 
It  follows,  that  all  must  have  been  bound,  or  none  were  bound. 
In  substance,  the  paper  given  by  the  *plaintiffs  to  Wat-  r*oQf;'i 
son  was  a  release.     That  it  was  not  under  seal  did  not  ^         ^ 
diminish  its  legal  effect.     In  equity,  a  parol  release  is  valid. 
The  intention  being  everything,  the  mode  of  discharge  is  imma- 
terial.    In  Pennsylvania  a  seal  is  by  no  means  necessary  to  the 
efficacy  of  a  release.     This  has  been  determined  in  relation  to  so 
solemn  an  instrument  as  a  mortgage,  which  may  be  discharged 
by  parol.     Wentz  v.  Dehaven,  1  Serg.  &  Rawle,  319.    The  con- 
clusion to  be  deduced  from  all  the  cases  is,  that  the  exoneration 
of  Watson,  was  on  a  valuable  consideration,  and  that  being  in 
substance  a  release  of  a  joint  debtor,  it  discharges  all.     The  au- 
thorities are  clear  to  this  effect,  and  they  are  founded  in  reason. 
If  the  Browns  were  lefl  to  pay  the  debt,  and  demand  contribu- 

443 


395  SUPREME  COURT  [Sunfmry, 

[Milliken  and  another  v.  Brown.] 

tion  from  Watson,  the  exoneration  of  him,  for  which  the  plain 
tiffs  received  a  vahiable  consideration,  would  be  frustrated.  If, 
on  the  other  hand,  they  are  not  to  have  contribution,  then  in 
case  of  the  insolvency  of  one  of  the  two  remaining  debtors,  the 
other  would  have  to  bear  the  burden  of  two-thirds  of  the  debt, 
which  would  be  unjust.  The  plaintiffs  are,  therefore,  involved 
in  the  dilemma,  of  doing  an  injury  either  to  Watson  or  his  co- 
debtors.  This  they  could  not  do.  They  were  bound  to  make 
their  release  good  in  a  way  not  to  jeopard  any  one,  and  that 
they  could  only  do  by  resigning  their  claims  to  the  residue  of 
the  debt. 

The  opinion  of  the  court  was  delivered  by 

Huston,  J. — A  suit  was  originally  brought  in  the  Court  of 
Common  Pleas  of  Mifflin  county,  by  Foster  and  David  Milliken, 
trading,  &c.,  against  John  Brown,  William  Brown,  Jr.,  and  John 
Watson,  under  the  firm  of  John  Brown  &  Co.,  and  a  judgment 
obtained  on  the  4th  of  February,  1819,  for  five  thousand  eight 
hundred  and  eighty-nine  dollars  and  ninety-six  cents.  On  the 
18th  of  March,  1819,  the  defendant  gave  bail  absolute  for  the 
payment  of  the  money,  in  order  to  obtain  stay  of  execution  for 
one  year,  according  to  the  act  of  assembly.  Notwithstanding 
this,  David  Milliken,  one  of  the  plaintiffs,  procured  a  writ  of 
fieri  facias  to  be  issued  in  Mifflin  county  on  the  23d  of  March, 
1819;  and,  the  sheriff  of  Mifflin  county  indorsed  a  return  of 
nulla  bona  thereon,  although  the  furnace,  forge,  and  stock  of 
the  defendants  were  in  that  county,  and  although  both  John  and 
William  Brown,  Jr.,  who  lived  in  that  county  at  that  time,  had 
each  of  them  large  real  and  personal  estate,  and  this  well  known 
to  the  plaintiffs  and  sheriff.  On  the  24th  of  March,  David  Mil- 
liken procured  a  testatum  fieri  faeias  to  be  issued,  directed  to  the 
sheriff  of  Lancaster  county,  where  John  Watson  lived,  and  was 
of  considerable  wealth ;  but  who,  living  at  a  distance,  knew 
nothing  of  the  suit  or  judgment,  or  bail  for  stay  of  execution. 
David  Milliken  called  on  John  Watson  with  the  fieri  facias,  who, 
being  uneasy  at  the  idea  of  so  large  an  execution  against  him, 
agreed  to  pay  four  hundred  dollars  at  once,  and  did  pay  it ;  and 
r^oqp-]  further  agreed  to  pay,  and  did  pay  into  the  *hands  of 
•-  ^  Christian  Haldeman  sixteen  hundred  dollars  more,  within 
a  few  days,  for  the  plaintiffs.  This  was  expressly  on  an  agree- 
ment to  exonerate  him  from  all  further  liability  on  that  judg- 
ment, as  was  expressly  proved  by  Mr.  Haldeman,  and  the  re- 
ceipt given  by  Milliken,  which  was  in  these  words  : — "  May  4th, 
1819,  received  by  the  hands  of  Christian  Haldeman  from  Dr. 
John  Watson,  sixteen  hundred  dollars,  the  balance  of  two  thou- 
sand dollars,  his  part  of  a  judgment  Foster  Milliken  &  Co.  v. 
444 


June  15,  1829.]      OF  PENNSYLVANIA.  396 

[Mi]  liken  and  another  v.  Brown.] 

John  Brown  &  Co.,  for  Foster  Milliken  &  Co.,  David  Milliken." 
Nothing  further  was  done  until  the  expiration  of  the  year,  when 
a  suit  was  brought  against  William  Brown,  Esq.,  father  of  John 
and  William,  on  the  recognisance  of  bail,  reported  in  10  Serg.  & 
Rawle,  189.  Afterwards,  in  consequence  of  the  opinion  given  < 
in  that  case,  among  other  reasons,  the  judgment  was  opened  so 
far  as  to  let  the  defendants  into  a  defence ;  and  they  pleaded 
payment,  with  leave,  &c.,  a  release  and  issues  taken.  At  a  Cir- 
cuit Court  in  April,  1828,  the  cause  came  on  to  be  tried.  John 
Brown  was  then  absent  from  this  state.  After  the  jury  was 
sworn,  there  was  taken,  by  consent,  a  judgment  against  William 
Brown,  Jr.,  for  one-third  of  the  original  debt  and  interest  to  that 
time,  with  an  agreement  that  this  was  not  to  aifect  the  claim  of 
the  plaintiffs  against  John  Brown  ;  that  the  names  of  W^illiam 
Brown,  Jr.,  and  John  Watson  were  to  remain  on  the  record,  but 
they  were  not  to  be  affected  by  any  judgment  which  might  be 
recovered  against  John  Brown  :  and  the  jury  were  discharged. 

At  April  Circuit  Court  in  1829,  for  Mifflin  county,  the  cause 
came  on  before  the  Chief  Justice,  who  directed  the  jury,  that  the 
acts,  the  receipts  and  the  agreement  of  David  Milliken,  dis- 
charged John  Watson ;  and  also,  discharged  John  Brown,  the 
only  defendant  before  him  :  and  verdict  for  the  defendant,  mo- 
tion for  a  new  trial  overruled,  and  judgment  and  appeal. 

It  is  understood  that  it  was  not  contended  at  the  Circuit  Court, 
and  certainly  it  was  not  much  insisted  on  here,  and  could  not 
have  been  with  effect,  that  John  Watson  is  not  totally  discharged ; 
but,  it  was  contended,  1.  That  although  a  release  will  discharge 
one  of  several  co-defendants,  and  will  also  be  a  release  of  all, 
yet,  it  must  be  a  technical  release  under  seal :  but,  that  a  re- 
ceipt, a  paper  not  under  seal,  will  not  have  that  effect,  and  that 
a  receipt,  though  in  writing,  is  always  open  to  explanation,  and 
cited,  Putnam  v.  Lewis,  8  Johns.  304,  and  Johnson  t;.Weed,  9 
Johns.  310,  which  certainly  say  so ;  and  also  2  Johns.  449,  and 
Rowley  v.  Stoddard,  7  Johns.  207,  which  do  say,  that  a  receipt 
in  full  to  one  defendant,,  does  not  discharge  the  co-defendants, 
but  tliat  a  technical  release  under  seal  will. 

The  courts  of  New  York  have  been  composed  of  men  of  such 
knowledge  and  character,  that  their  decisions  are  entitled  to  great 
respect ;  and  it  is  with  diffidence  they  are  questioned.  We  are 
obliged,  however,  sometimes  to  question  them,  and  to  decide 
*contrary  to  them,  or  to  give  up,  not  barely  a  course  of  r*oQ7-| 
our  own  decision,  but  our  whole  system  of  jurisprudence.  ^  -I 
They  have  separate  courts  of  law  and  equity,  and  they  have 
kept  up  the  line  of  distinction  between  these  as  pointedly,  per- 
haps I  might  say,  as  fastidiously,  as  it  was  done  in  England 
before  Lord  Mansfield's  time,  and  certainly  more  than  is  done 

445 


397  SUPREME  COURT  [Sunhury, 

[Milliken  and  another  r.  Brown.] 

now.  AVe,  on  the  contrary,  exercise  the  two  jurisdictions  by 
the  same  court  and  jury,  at  the  same  time,  and  instead  of  giv- 
ing a  verdict  and  judgment  against  a  man  in  one  court,  with  a 
full  knowledge  that  he  will  be  relieved  in  another,  we,  if  he  is 
entitled  to  relief,  give'it  at  once  in  the  trial  of  the  cause.  One 
of  the  most  marked  distinctions  arising  from  this  is,  that  a  writ- 
ing, especially  if  under  seal,  is  received  in  their  courts  of  law, 
(except  a  receipt,  and  why  it  is  an  exception  I  do  not  know, 
though  perhaps  they  do.^  But,  mistake  or  fraud  must  be  proved 
there,  and  relieved  against  in  Chancery :  here  it  is  done  in  a 
court  of  law. 

There  was  a  time  in  the  history  of  the  law  when,  like  every- 
thing else  of  that  day,  it  was  a  system  of  metaphysics  and  logic ; 
and,  when  the  cause  was  decided  without  the  slightest  regard  to 
its  justice,  solely  on  the  technical  accuracy  of  the  pleaders  on 
the  several  sides  :  defect  of  form  in  the  plea,  was  defect  of  right 
in  him  who  used  it.  This  period  of  juridical  history,  however, 
was  in  some  respects  distinguished  by  great  men,  of  great  learn- 
ing, and  abounds  with  information  to  the  student.  At  the  time 
I  speak  of,  payment  of  debt  and  interest  on  a  bond,  the  next 
day  after  it  fell  due,  was  no  defence  in  a  court  of  law ;  nay,  it 
was  no  defence  to  prove  payment  without  an  acquittance  before 
the  day ;  nay,  if  you  pleaded  and  proved  a  payment,  which  was 
accepted  in  full  of  the  debt,  yet,  you  failed  unless  your  plea  stated 
that  you  paid  it  in  full,  as  well  as  that  it  was  accepted  in  full ; 
or,  perhaps,  because  you  pleaded  it  as  a  payment,  when  you 
ought  to  have  pleaded  it  as  an  accord  and  satisfaction.  An  act 
of  parliament  or  two,  and  the  constant  interference  of  the  Court 
of  Chancery,  granting  relief,  have  changed  this  in  a  great  mea- 
sure ;  but,  it  is  not  a  century  since  it  was  solemnly  decided, 
that  if  a  creditor,  finding  his  debtor  in  failing  circumstances, 
and  being  afraid  of  losing  his  debt,  proposed  to  give  him  a 
discharge  in  full  if  he  paid  half  the  money,  and  the  debtor  bor- 
rowed the  money,  and  paid  the  one-half  on  the  day  the  bond 
fell  due,  and  got  an  acquittance  in  terms  as  explicit  as  the 
English  language  could  afford,  yet,  if  sued,  he  must  pay  the 
rest  of  the  debt ;  for,  it  was  impossible,  say  the  court,  payment 
of  part  could  be  a  satisfaction  of  the  whole :  but,  if  part  was 
paid  before  the  day,  it  was  good  satisfaction  of  the  whole.  I 
mention  this  not  from  a  general  disrespect  of  the  law  or  lawyers 
of  the  days  I  speak  of,  but  for  another  purpose.  It  has,  alas  ! 
become  too  common  for  men  of  good  character  and  principles, 
but  who  trade  on  borrowed  capital,  to  fail,  and  their  creditors 
are  glad  to  receive  fifty  cents  in  the  dollar,  and  give  a  discharge 
in  fiill ;  and  I  do  not  know  the  lawyer  who  would  be  hardy 
446 


June  15,  1829.]      OF  PENNSYLVANIA.  397 

[Milliken  and  another  v.  Brown.] 

enough  to  deny  *the  validity  of  such  a  discliarge,  r+oQQ-i 
althougli  given  after  the  money  was  due,  and  although  L  J 
the  discharge  was  not  under  seal,  or  although  it  might  be 
doubtful  whether  it  could  more  properly  be  called  a  receipt, 
or  a  release,  or  a  covenant  never  to  sue,  if  the  meaning  can  be 
certainly  ascertained,  and  no  fraud,  concealment,  or  mistake 
at  the  giving  it,  it  is  eifectual.  It  avails  little  then,  to  go 
back  to  the  last  century,  or  further,  to  cite  cases  in  which  a 
matter  was  of  validity,  or  effect,  according  as  it  was  couched 
in  this  or  that  form.  Universally  the  law  is,  or  ought  to  be, 
that  the  meaning  or  intention  of  the  parties  is,  if  it  can  be 
distinctly  known,  to  have  effect,  unless  the  intention  con- 
travenes some  well-established  principle  of  law.  I  refer  to 
Wentz  V.  Dehaven,  1  Serg.  &  Rawle,  312,  as  fully  settling, 
that  a  seal  is  not  necessary  to  a  release  of  a  debt,  secured 
by  the  most  formal  sealed  instrument.  This  case  brings  the 
law  in  this  state  to  this :  That  a  discharge,  acquittance,  or 
release,  call  it  what  you  will,  is  as  valid  without  a  seal  as  with 
it ;  and,  I  know  of  no  instrument  which  is  not  so,  unless  where 
a  positive  act  of  assembly  requires  a  seal.  The  form  of  action, 
or  the  plea,  may  be  different,  but  in  some  way,  if  plain  and  fair, 
it  has  effect. 

It  may  be  conceded,  that  David  Milliken  had  no  intention  to 
release  John  Brown  or  William  Brown,  Jr. ;  nay,  there  is  no 
reason  to  believe  that  Dr.  Watson,  expected,  or  even  suspected 
any  such  result.  The  effect,  if  produced,  is  not  from  the  words 
of  the  instrument  or  design  of  the  parties ;  perhaps,  there  was 
no  design  to  release  any  other  than  the  one  named,  in  any  case, 
where  such  release  has  had  that  effect ;  yet,  it  did  produce 
that  effect  from  the  earliest  times  of  the  law.  In  Fitz.  N.  B. 
238,  letter  M.,  if  two  are  severally  bound  in  statutes,  and 
recognizee  release  the  statutes  to  one  of  them,  and  then  sue 
execution,  they  shall  have  audita  querela.  Hence,  it  would 
seem,  relief  was  had,  before  chancery  had  assumed  such  juris- 
diction. The  same  law  is  found  in  Co.  Lit.  236 ;  9  Co.  270 ; 
Needham's  Case,  5  Co.  52 ;  Heckinote's  Case,  1  Ld,  Raym. 
690,  "  Where  a  covenant  is  joint  and  several,  a  release  to  one 
is  a  release  of  all :  like  the  case  of  joint  trespassers,  which 
is  joint  or  several  at  the  election  of  the  plaintiff,  but  a  release 
to  one  discharges  all."  And  "  there  is  no  doubt  but  a  release 
to  one  co-obligor  is  a  release  to  both,  in  equity  as  well  as  at 
law."  1  Atk.  294.  And  it  produced  the  same  result,  although 
there  was  an  express  proviso  in  the  release  that  it  should  not 
discharge  the  co-obligor.  5  Bac.  Ah.  703.  For  this  he  cites 
Litt.  Rep.  And  in  2  Dessaussure,  page  1,  we  find  the  case, 
where  one  of  several  co-obligors  in  a  bond,  and  who  was  only 

447 


398  SUPREME  COURT  [Sunbury, 

[Milliken  and  another  t-.  Brown.] 

a  surety,  obtained  a  release  from  the  obligee,  who  afterwards 
assigned  the  bond  to  the  state,  whose  indents  had  been  lent ; 
the  state  brought  a  suit  in  chancery  against  P.  who  had 
obtained  the  release.  "  It  was,"  says  Rutledge,  Justice,  "  ob- 
jected, that  the  release  was  provisional,  that  the  other  obligor 
should  still  be  bound,  or  it  should  have  no  effect.  The  release 
does  not  purport  anything  of  the  kind ;  it  is  absolute,  and 
r*oQQi  t^6  obligee,  (who  was  attorney  *general,)  must  have 
L  "  J  known  it  would  have  the  effect  to  release  all  of  them. 
As  to  the  idea,  that  the  release  was  to  be  kept  secret,  and  the 
co-obligors  made  responsible,  it  was  absurd;  because,  if  the 
bond  had  been  sued,  the  defendant.  P.,  must  have  been  sued 
with  the  others,  and  his  pleading  the  release  would  have  been 
au  effectual  bar  to  a  recovery  against  them  all ;"  and  he  pro- 
ceeds to  show,  that  as  the  defendant  had  obtained  his  release 
fairly  he  was  discharged,  though  thereby  all  the  others  were  so 
also.  So,  if  one  of  two  judgment  debtors,  who  is  not  bound 
as  between  themselves  to  pay  more  than  half,  pays  all,  the 
judgment  cannot  be  kept  alive  to  recover  the  other  half  for 
his  use  from  the  other.  9  Mass.  138.  And  if  one  of  two 
debtors  on  a  judgment  is  taken  on  a  capias  ad  satisfaciendum, 
and  discharged  by  the  plaintiff,  the  judgment  is  gone  as  to  the 
other.     Ibid.,  and  cases  there  cited. 

It  is  true,  some  of  the  cases  cited  in  the  argument  seem  to 
put  the  discharge  on  some  magical  effect  of  a  seal ;  but,  it  has 
been  shown,  that  in  this  state  at  least,  a  seal  is  not  necessary. 
The  general  position,  that  a  release  of  one  is  a  discharge  of  all, 
is  not  denied  in  any  case :  it  is  equally  effectual  at  law  and  in 
equity.  Has  it  not  its  foundation  laid  deeper  than  some  of  the 
cases  suppose,  in  this,  that  where  several  persons  have  con- 
tracted together,  and  several  of  them  are  bound  to  one  in  a  cer- 
tain way,  that  one  shall  not  of  his  own  accord,  or  by  collusion 
with  one  of  them,  change  their  several  responsibilities  ?  It  is 
the  same  principle  which,  when  four  agree  to  go  surety  in  a 
bond  jointly  and  severally  for  one,  and  three  sign  it,  and  the 
bond  is  expressly  left  to  be  signed  by  the  other,  who  never 
signs  it,  none  are  bound.  Pawling  v.  The  United  States,  4 
Cranch,  219.  There  would  occur  technical  difficulties  also. 
On  a  sGi7'e  facias  to  reverse  this  judgment,  could  there  be  judg- 
ment for  John  Watson  and  against  the  others,  or  one  of  them  ? 
There  is  a  judgment  confessed  against  William  Brown,  Jr.,  for 
one-third  and  interest  till  April,  1828  ;  if  this  cause  should  go 
back,  can  there  be  another  judgment  against  John  for  another 
one-third  and  interest  till  next  year,  and  different  executions 
against  different  persons  in  the  same  suit,  for  different  and  dis- 
448 


Junel5,lS29.]       OF   PENNSYLVANIA.  399 

[Milliken  and  another  v.  Brown.] 

tinct  sums  ?  The  arrangement  with  Watson  and  with  William 
Brown,  Jr.,  if  none  with  ^^'^atson,  discharge  John  Brown. 

Everybody  knows,  that  generally,  an  undivided  interest  in  a 
farm,  a  house,  a  furnace,  &c.,  will  not  sell  as  well  in  proportion 
as  the  whole  will.  Can  John  Watson  and  the  plaintiff  change 
the  law,  and  sell  the  undivided  interest  of  each  of  the  other 
partners,  against  their  consent,  separately,  for  a  judgment  which 
bound  the  whole  property  ?  A  rich  partner  might  iu  this  way, 
easily  become  owner  of  all  the  shares. 

There  may  be  hardship  in  this  case ;  if  there  is,  it  was  occa- 
sioned by  very  shameful  conduct  of  one  of  the  plaintiffs.  There 
are  some  things  the  law  will  not  permit.  You  cannot  give  a 
title  in  fee  simple  and  restrain  the  right  of  selling,  &c. ;  nor 
can  a  judgment  *creditor  release  one  of  the  defendants,  r^c^rvri-i 
and  hold  the  others  bound.  Even  a  release  of  part  of  '-  -■ 
mortgaged  premises,  was  a  release  of  the  whole  until  an  act  of 
assembly  of  the  2d  of  April,  1822,  was  passed,  allowing  the 
mortgagee,  on  receiving  a  proportionable  part  of  the  mortgage 
money,  to  release  a  portion,  and  still  recover  the  residue  from 
the  remaining  mortgaged  premises. 

Note. — See  14  Jolms,  330.  One  of  several  parties  to  a  con- 
tract under  seal,  to  perform  certain  work,  releases  by  parol  the 
other  party  from  performing  the  work ;  this  is  valid. 

Tod,  J . — I  am  not  able  to  concur.  I  take  it,  that  the  fact  of 
the  premature  testatum  execution,  unjustifiable  as  it  was,  must 
be  thrown  out  of  the  case  on  this  writ  of  error.  The  injury 
should  be  redressed  by  the  proper  form  of  action,  in  the  name 
of  the  proper  person.  The  damages  ought  not  to  fall  entirely 
upon  Watson,  and  the  indemnity  all  to  go  to  John  Brown. 
Besides,  from  the  case  in  10  Serg.  &  Rawle,  188,  the  Millikens 
appear  to  have  paid  the  penalty  of  the  act  by  the  comj)lete  loss 
of  their  security. 

I  agree,  that  in  the  case  of  a  debt  not  yet  payable,  the  cred- 
itor may,  if  he  thinks  fit,  accept  much  less  than  his  due,  and  give 
a  valid  discharge  of  the  whole.  But  that,  I  apprehend,  is  only 
where  the  creditor  intends  to  discharge  the  whole.  Here,  it  is 
not  pretended  to  be  said,  that  either  Alilliken,  who  received,  or 
Watson,  who  paid  the  third  of  the  debt,  had  the  least  imagina- 
tion of  exonerating  John  Brown  and  William  Brown,  Jr.,  from 
the  other  two-thirds.  But  it  is  supposed,  that  the  law  impera- 
tively gives  to  the  transaction  an  effect  which  the  parties  never 
meant,  and  that  a  release  to  one  is  a  release  to  all.  With  some 
diffidence,  and  with  great  respect  for  the  opinion  of  the  court, 
I  would  hold,  that  a  discharge  of  one  joint  debtor,  on  receiving 
his  share  of  the  debt,  can  operate  an  extinguishment  and  for- 

voL.  I.— 29  449 


400  SUPREME  COURT  [Sunhiry, 

[Milliken  and  another  v.  Brown.] 

feiture  of  the  residue,  against  the  intent  of  the  parties,  only  in 
case  of  a  strictly  technical  and  legal  release  under  seal.  All 
the  authorities  appear  to  be  so.  Harrison  v.  Close,  2  Johns. 
Rep.  448  ;  lb.  186  ;  2  Salk.  575 ;  2  Saund.  48 ;  9  Johns.  Rep. 
310;  8  Johns.  Rep.  389;  Rowley  v.  Stoddard,  7  Johns.  Rep. 
210,  held,  that  on  receiving  part  of  a  debt  from  a  joint  debtor, 
and  discharging  him,  in  order  to  produce  the  effect  of  discharg- 
ing the  other  debtors,  against  the  intent  of  the  parties,  the 
release  must  be  technical  and  under  seal ;  and  that  a  mere  re- 
ceipt in  full,  can  produce  no  such  injurious  consequence.  After 
citing  many  authorities,  the  decision  concludes,  that  it  cannot 
be  pretended  that  a  receipt  for  part  only,  though  expressed  to 
be  in  full  of  all  demands,  must  have  the  same  operation  as  a 
release.  There  is  a  case,  not  cited  at  the  bar,  which  appears  to 
me  to  be  strong.  Ruggles  v.  Patten,  8  Mass.  480.  An  action 
against  one  of  several  joint  promisers  in  a  note  of  hand  :  the 
plea  was  payment  by  one  of  the  promisers  of  three  hundred  and 
fieventy-eight  dollars,  made  and  received  in  full  of  his,  the  said 
Samuel's  quarter  part,  and  that  he,  the  payee,  did  then  and 
r*4m  1  *t^^''^  exonerate,  acquit,  and  discharge  the  said  Samuel 
■•-  -•  from  any  further  payment  of  the  said  note.  Upon  a 
-general  demurrer  to  this  plea,  the  decision  was  in  favour  of  the 
plaintiff,  the  court  holding,  that  payment  of  part  by  one  joint 
debtor  effects  no  discharge  of  the  others. 

Indeed,  I  would  be  almost  ready  to  say,  that  if  instead  of  a 
bare  receipt  to  Watson  in  full  of  his  share,  it  had  been  a  release 
to  him,  under  seal,  still  it  would  be  against  all  equity  that  a 
party  should  be  thus  entrapped  by  his  ignorance,  and  by  the 
formality  of  a  seal,  into  the  loss  of  two-thirds  of  his  debt.  The 
very  case  came  before  a  Court  of  Chancery,  in  Kirby  v.  Taylor, 
cited  at  the  bar,  6  Johns.  Ch.  Rep.  242,  where  it  was  decided, 
that  a  release,  under  seal,  given  to  one  joint  obligor,  should  dis- 
charge him  only,  and  not  the  rest.  And  2  Com.  Dig.  Ch.  4, 
L.  2,  is  express,  that  if  a  release  goes  beyond  the  intent  of  the 
parties,  it  shall  be  avoided  in  equity.  In  the  argument  of  the 
counsel,  inconveniences  have  been  attempted  to  be  shown,  if  one 
of  several  joint  debtors  could  be  permitted  to  pay  his  share  and 
be  discharged  ;  and,  it  is  said,  that  if  John  or  William  Brown,  Jr., 
should  prove  insolvent,  and  the  other  be  compelled  to  pay  the 
remaining  four  thousand  dollars,  he  who  should  so  pay,  could 
not  sue  Watson  for  contribution,  but  would  be  barred  by  the  re- 
ceipt in  full,  signed  by  Milliken.  Now,  as  to  this  matter,  it 
seems  to  me,  that  there  might  be  said  to  be  some  risk  of  loss  to 
the  Millikc^ns,  by  discharging  one  of  the  debtors  from  the  resi- 
due of  the  debt ;  but,  that  John  Brown  and  William  Brown,  Jr., 
could  have  no  possible  ground  of  just  complaint,  because  they 
450 


June  15, 1829.]      OF  PENNSYLVANIA.  401 

[Milliken  and  another  v.  Brown.] 

were  exonerated  for  ever  to  the  amount  of  two  thousand  dollars, 
whereas  before,  they  were  liable  each  one  for  the  whole  debt. 
And  as  to  the  law  on  this  head,  even  the  holder  of  an  accommo- 
dation note,  who  has  received  a  composition  from,  and  who  has 
covenanted  not  to  sue  the  payee,  for  whose  accommodation  the 
note  was  made,  may,  notwithstanding,  sue  the  maker,  though 
on  payment  of  it,  he,  the  maker,  will  have  a  right  of  action 
against  the  payee.  And  if  the  holder  release  to  the  payee 
all  claims  in  respect  to  the  note,  not  knowing  that  he  is  a  surety, 
this  will  not  discharge  the  maker.     Chitty  on  Bills,  381. 

The  doctrine  relied  on  at  the  bar,  of  satisfaction  by  one  joint 
trespasser,  is*  not  to  the  purpose.  For  there  appears  much  dif- 
ference between  matters  of  contract  and  matters  of  tort.  If  two 
join  in  a  battery  of  the  person,  or  in  a  libel  upon  the  character 
of  another,  and  the  party  injured  receives  a  sum  of  money  from 
one  in  full  satisfaction  as  to  him  thus  paying;  as  the  just 
amount  of  damages  must  be  wholly  uncertain,  the  law,  therefore, 
perhaps,  necessarily  supposes,  that  a  second  satisfaction  from 
another  defendant,  will  be  a  double  satisfaction  for  the  same 
wrong.  But  it  seems  to  me,  if  two  men  join  to  borrow  one  hun- 
dred dollars,  and  the  lender  accepting  fifty  dollars  from  one, 
gives  him  a  receipt  in  full  for  his  share,  every  one  sees  that  the 
debt  is  but  half  paid ;  that  whatever  risk  has  been  incurred  in 


the  case,  has  been  incurred  by  the  lender,  and  that  any 
complaint  of  inconvenience  by  the  man  who  did  not 


[*402] 

pay,  and  who  now  is  liable  for  fifty  dollars  only  instead  of  a 
hundred,  must  be  groundless.  The  case  of  Wentz  and  Wife 
V.  Dehaven's  Executor,  1  Serg.  &  Rawle,  312,  seems  not  opposed 
to  my  opinion.  It  is  rather  in  my  favour.  In  that  case,  a  dis- 
charge without  a  seal,  was  held  sufficient  against  a  mortgage,  a 
sealed  instrument.  And  the  old  rule  of  law  of  unum  qiiodque 
dissolmtur,  cfec,  was  disregarded,  in  order  to  promote  the  equity 
of  the  case,  and  the  intent  of  the  parties.  Here  a  new  rule 
appears  to  be  asked  for,  to  give  to  a  receipt  the  eflfect  of  a  re- 
lease, and  to  add  a  seal  for  the  purpose  of  defeating  the  intent 
of  the  parties. 

Gibson,  C.  J. — It  seems  to  me  that  this,  like  every  other 
part  of  the  common  law  retained  in  use,  is  founded  not  only  in 
convenience,  but  justice.  No  case  can  be  better  fitted  to  illus- 
trate this,  than  the  one  at  bar.  Two  of  three  joint  debtors  are 
solvent,  the  third  is  insolvent ;  and  the  creditor  agrees,  on  suffi- 
'cient  consideration,  to  exonerate  one  of  the  two  who  are  sol- 
vent entirely  from  liability.  Now,  the  most  sacred  principles  of 
justice  require  that  this  agreement  be  performed ;  and,  it  is  ad- 
mitted, that  it  ought  to  be  performed.    But  how  ?    By  exacting, 

451 


402  SUPREME  COURT  [Sunbary, 

[Milliken  and  another  v.  Brown.] 

it  is  said,  the  remdining  two-thirds  from  the  remaining  solvent 
debtor,  and  leaving  him  to  his  action  for  contribution  against 
the  debtor  who  had  bought  his  peace ;  in  other  words,  by  per- 
mitting the  creditor  to  collect  the  debt,  not  directly  from  the 
exonerated  debtor,  but  from  one  who  would  in  turn  collect  it 
from  him,  being  substituted  for  the  original  creditor,  and  suc- 
ceeding even  to  the  equitable  ownership  of  the  judgment  as  a 
security.  It  is  unnecessary  to  say  how  imperfect  this  would  be. 
It  would  afford  but  little  gratification  to  the  debtor  to  know  that 
his  money  had  not  gone  directly,  but  circuitously  into  the  pocket 
of  one  who  had  absolved  him  from  the  debt.  Cases  might  un- 
doubtedly be  put,  in  which  the  justice  of  the  rule  would  be  less 
apparent ;  for  instance,  where  the  outgoing  debtor  has  paid  his 
proportion,  as  between  the  debtors  themselves.  Still  there 
would  be  a  degree  of  injustice  in  forcing  them  to  settle  nice  and 
complicated  equities,  (in  the  present  case  depending  on  the  wind- 
ing up  of  a  partnership,)  in  a  proceeding  with  a  stranger,  and 
not  between  themselves ;  without  which,  it  would  be  impossible 
to  ascertain  how  much  might  be  found  for  the  creditor  without 
jeoparding  the  exonerated  debtor.  In  a  court,  proceeding 
according  to  common  law  forms,  this  would  be  impracticable ; 
and,  before  a  jury,  even  were  the  judgment  as  ductile  as  a  de- 
cree in  equity,  intolerably  inconvenient.  If  defendants  might 
be  compelled  to  conduct  an  underplot  among  themselves,  judi- 
cial proceedings  would  be  in  perpetual  danger  of  branching  into 
forms  too  fantastic  for  use.  An  engagement  to  exonerate  a 
joint  debtor,  therefore,  must  be  made  good  in  the  only  way 
known  to  the  law — by  relinquishing  the  debt.  It  seems  to  me, 
then,  that  the  rule  has  a  foundation  more  solid  than  the  magic 
r*^n'^T  ^^  ^  ^^^^ '  ^'^^j  although  there  *are  dicta,  that  it  holds 
L  J  only  in  the  case  of  a  technical  release,  yet,  that  is  said 
not  to  distinguish  a  legal  from  an  equitable  release,  but  to  indi- 
cate that  there  must  be,  not  merely  a  covenant  not  to  sue,  which 
may  in  some  cases  be  pleaded  as  a  release,  but  an  unqualified 
discharge  from  further  liability.  Now,  whatever  may  be  the 
effect  of  accepting  in  satisfaction  of  the  whole,  a  part  of  a  debt, 
payable  presently,  it  is  unquestionable  that  prompt  payment  of 
part,  when  the  debt  was  not  demandable,  is  an  available  con- 
sideration even  for  a  promise,  and  it  is  quite  as  certain,  that  a 
parol  release  is  effectual  in  our  courts  of  law.  By  the  way,  the 
judges  who  decided  Wentz  v.  Dehaven,  were  far  from  trampling 
on  the  common  law.  It  is  well  known  that  a  majority  of  them, 
entertained  just  notions  of  its  obligation  as  well  as  a  salutary 
fear  of  the  evils  inseparable  from  judicial  legislation.  They 
but  conformed  their  judgment  to  a  common  law  principle 
modified  as  to  circumstances  by  time,  and  the  intervention  of 
452 


June  15,1S29.]      OF   PENNSYLVANIA.  403 

[Milliken  and  another  v.  Brown.] 

Courts  of  Chancery.  It  is  a  property  of  this  common  law, 
which  alone  would  render  it  more  excellent  in  practice,  than 
any  code  of  ancient  or  modern  date,  that  it  gradually  and 
imperceptibly  yields  to  the  form  and  pressure  of  the  age,  but 
never  to  force,  without  manifesting  in  the  consequences,  the 
violation  it  has  suffered.  These  remarks  are  subjoined,  not 
with  an  expectation  that  they  will  add  to  the  argument  of 
Judge  Huston,  who  has  satisfactorily  stated  the  grounds  of  the 
judgment,  but,  with  great  respect  for  the  opinion  of  Judge  Tod, 
who  dissents,  to  vindicate  the  rule  on  which  I  put  the  cause  to 
the  jury. 

Judgment  affirmed. 

Cited  by  Counsel,  3  Penn.  E.  411,  439;  1  Wh.  395,  342;  5  Wh.  134,  537; 
1  W.  199,  498;  8  W.  224;  5  W.  &  S.  487  ;  3  Barr,  155  ;  8  Barr,  266  ;  10  Barr, 
402 ;  IJ.  314 ;  1  H.  168 ;  8  H.  128 ;  9  C.  269  ;  3  G.  152 ;  6  Wright,  163  ;  3  N. 
136 ;  s.  c  4  W.  N.  C.  31 ;  11  W.  N.  C  889,  390. 

Cited  by  the  Court,  1  Penn.  R.  381 ;  5  Barr,  39 ;  commented  on  and  ex- 
plained, 3  Penn.  R.  63,  and  qualified  in  12  Wright,  174 ;  where  it  is  said, 

Milliken  v.  Brown,  has  not  been  followed." 


[SuNBTTRY,  June  15,  1829.] 

Barton  and  Others  against  Smith. 

IN  ERROR. 

It  seems  that  the  ninth  section  of  the  act-of  the  8th  of  April,  1785,  requiring 
that  surveys  should  be  made  after  the  warrants  are  delivered  to  the  deputy 
surveyor,  is  not  confined  to  the  purchase  made  of  the  Indians  in  1784. 

Independently,  however,  of  legislative  enactment,  a  survey  made  previously 
to  a  warrant,  is  void  ;  and  is  not  rendered  valid  by  the  receipt  of  tlie  purchase- 
money  and  acceptance  of  the  survey. 

Error  to  the  Common  Pleas  of  Huntingdon  county,  in  an 
ejectment  brought  in  that  court,  by  Elizabeth  Barton  and  others, 
heirs  of  William  Barton,  against  Jacob  Smith,  for  a  tract  of 
land  on  the  north  branch  of  Little  Juniata.  Jacob  Smith  took 
defence  for  so  much  thereof  as  was  included  in  a  survey  made 
for  him  on  the  24th  of  July,  1807,  under  a  warrant  dated  Feb- 
ruary 23d,  1808.  The  plaintiff's  title  was  set  up  as  follows : 
On  the  1st  of  February,  1794,  William  Barton,  Esq.,  their 
ancestor,  took  out  a  number  *of  descriptive  warrants,  all  r^  ,,-.  ,-i 
of  that  date.  Surveys  were  returned,  purporting  to  ■-  -' 
have  been  made  on  the  24th  and  25th  of  May,  in  the  same 
year,  and  were  accepted  in  the  surveyor-general's  office  on  the 

453 


404  SUPREME  COURT.  [Sunbury, 

[Barton  and  others  v.  Smith.] 

29th  of  April,  1795.  The  purchase-money  was  paid  on  the 
14th  of  June,  1794;  but  evidence  was  given  to  show  that  the 
land  was  surveyed  for  Mr.  Barton  before  the  19th  of  April, 
1794. 

The  court  charged  the  jury,  that  if  Barton's  survey^  were 
made  before  the  warrants  came  to  the  hands  of  the  deputy  sur- 
veyor, the  surveys  we're  void,  and  that  the  acceptance  of  the 
returns  of  surveys  at  the  surveyor-general's  office  was  of  no 
eflfect. 

To  this  opinion  the  plaintiff's  counsel  took  a  bill  of  excep- 
tions, and  the  jury  having  found  a  verdict  for  the  defendant,  a 
writ  of  error  was  taken  out  by  the  plaintiffs. 

The  case  was  argued  in  this  court  on  the  14th  of  June,  1828, 
by  Miles  and  Blanchard,  for  the  plaintiffs  in  error,  who  con- 
tended that  the  surveys,  though  made  before  the  warrants  came 
to  the  hands  of  the  deputy  surveyor,  were  not  absolutely  void. 
The  act  April  8th,  1785,  applies  exclusively  to  the  purchase 
made  from  the  Indians  in  1784.  Several  sections  of  the  act 
have  been  expressly  adjudged  to  be  so  applicable.  Lessee  of 
Wright  V.  Wells,  1  Yeates,  286 ;  Lessee  of  Hubley  v.  White,  2 
Yeates,  146;  Lessee  of  Willinck  v.  Morris,  3  Yeates,  114; 
Woods  V.  Ingersoll,  1  Binn.  146 ;  Lessee  of  M'llhea  v.  Plum- 
mer,  1  Binn.  227  ;  Lessee  of  Steinmetz  v.  Young,  2  Binn.  520 ; 
Lessee  of  Harris  v.  Monks,  2  Serg.  &  Rawle,  560 ;  M'Dowell 
V.  Ingersoll,  5  Serg.  &  Rawle,  104;    Reynolds  v.  Dougherty, 

3  Serg.  &  Rawle,  325 ;  Creek  v.  Moon,  7  Serg.  &  Rawle,  334 ; 
Mock  V.  Astley,  13  Serg.  &  Rawle,  382.  But  still,  after  a 
patent,  the  commonwealth,  and  all  claiming  under  her,  would  be 
estopped.  When  the  commonwealth  has  thus  affirmed  the  trans- 
action, the  reason  of  the  law  ceases.  The  mischief  was,  that  by 
sham  surveys,  subsequent  bona  fide  appropriations  were  pre- 
vented. Levinz  v.  Will,  1  Dall.  434,  gives  the  sound  construc- 
tion of  statutes,  which  is  exemplified  in  respect  to  deeds  not 
recorded  within  six  mouths.  They  are  not  void  against  a  sub- 
sequent purchaser  with  notice,  because  the  mischief  intended  to 
be  remedied  does  not  exist  in  such  a  case.  The  practice  in  the 
land  office  ought  to  have  weight.  Cotemporaneous  construction 
of  statutes  should  not  be  departed  from.  Graham's  Appeal  1 
Dall.  136 ;  Stoolfoos  v.  Jenkins,  8  Serg.  &  Rawle,  173 ;  Blythe 
V.  Richards,  10  Serg.  &  Rawle,  265.  The  acceptance  of  a  sur- 
vey legalizes  it.  It  must  be  placed  on  the  same  footing  as  the 
acceptance  of  a  shifted  warrant  or  locatit)U.     Diggs  v.  Downing, 

4  Serg.  &  Rawle,  350 ;  Deal  v.  M'Cormick,  3  Serg.  &  Rawle, 
349,  350 ;  Smith  v.  Fultz,  4  Serg.  &  Rawle,  473 ;  Healy  v. 
Moul,  5  Serg.  &  Rawle,  187 ;  Light  v.  Woodside,  10  Serg.  & 

454 


/Mnel5,1829.]      OF   PENNSYLVANIA.  404 

[Barton  and  others  v.  Smith.] 

Rawle,  24 ;  M'Dowell  v.  Young,  J  2  Serg.  &  Rawle,  125 ;  Yickroy 
V.  Skelley,  14  Serg.  &  Rawle,  377. 

Potter,  for  the  defendant  in  error,  was  desired  to  confine 
himself  to  the  question  whether  the  act  of  April  8th,  1785, 
extends  beyond  *the  lands  purchased  in  1784;  and  he  r^^rxR-i 
argued,  that  as  the  preamble  was  general,  and  the  mis-  L  -■ 
chief  general,  the  remedy  must  be  general.  Even  under  the 
proprietary  government,  the  warrant  must  have  been  in  exist- 
ence at  the  time  of  the  survey.  Ross  v.  Evans,  3  Biun.  50 ; 
Wilson  V.  Stoner,  9  Serg.  &  Rawle,  39,  42 ;  Mock  v.  Astley, 
13  Serg.  &  Rawle,  382,  385.  A  particular  usage  has  been  ad- 
mitted, 2  Smith,  L.  157,  but  the  general  rule  was  as  stated,  ib. 
155,  6.  In  every  case  where  a  survey  made  without  authority 
was  afterwards  validated  by  the  proprietary  officers,  they  knew 
of  the  departure  from  their  orders.  But  whatever  loose  practice 
might  have  previously  prevailed,  it  was  put  a  stop  to  by  the 
express  regulations  of  the  proprietaries  in  1765.  He  also  cited 
Sproul  V.  The  Lessee  of  Plumsted,  4  Binn.  189  ;  The  Lessee  of 
Brown  v.  Long,  1  Yeates,  162;  The  Lessee  of  Bonnet  v.  Deve- 
baugh,  3  Binn.  175;  Add.  Rep.  127  ;  The  Lessee  of  M'Kiuzie 
V.  Crow,  2  Binn.  105  ;  Stockman  v.  Blair,  5  Binn.  211 ;  Simpson 
V.  Hall,  4  Serg.  &  Rawle,  343 ;  Bixler  v.  Baker,  4  Binn.  214 ; 
The  Lessee  of  Harris  v.  Monks,  2  Serg.  &  Rawle,  557  ;  Burd  v. 
Seabold,  6  Serg.  &  Rawle,  137. 

The  case  was  held  under  advisement  until  this  day,  when  the 
opinion  of  the  court  was  delivered  by 

Rogers,  J. — Two  questions  have  been  presented  to  the  court, 
which  have  been  argued  with  great  zeal  and  earnestness  :  1, 
Whether  a  survey,  made  before  the  warrant  issues,  be  void ;  and, 
2.  Whether  the  payment  of  the  purchase-money  to  the  common- 
wealth, where  the  warrant  issued  after  the  survey,  the  accept- 
ance of  the  survey,  and  the  order  of  the  Board  of  Property  of 
the  20th  of  April,  1795,  validate  the  title  of  the  plaintiffs.  The 
plaintiffs  claim  the  land  by  virtue  of  three  warrants,  bearing 
date  respectively  the  1st  of  February,  1794.  The  surveys, 
which  purport  to  have  been  made  the  24th  and  25th  of  May, 
1794,  were  returned,  and  accepted  in  the  office  of  the  surveyor- 
general  the  29th  of  April,  1795.  The  plaintiffs'  ancestor  Wil- 
liam Barton,  paid  the  purchase-money  the  14th  of  June,  1794, 
and  the  surveying  fees,  as  appears  by  a  paper  produced  at  the 
trial,  the  19th  of  April,  1794.  After  the  verdict,  we  are  to 
consider  it  as  settled,  that  the  surveys  were  made  before  the  war- 
rants came  to  the  hands  of  the  deputy  surveyor,  to  whom  they 
were  directed.     It  is  contended,  that  a  survey  so  made,  is  con- 

455 


405  SUPREME  COURT  [Suiibury, 

[Barton  and  others  v.  Smith.] 

trary  to  the  plain  provisions  of  the  act  of  the  8th  of  April,  1785, 
and  particularly  to  the  ninth  section ;  and,  on  the  other  hand, 
it  is  insisted,  that  the  act  does  not  apply  to  this  land,  but  to  the 
purchase  of  1784 ;  and,  that  the  payment  of  the  purchase-money, 
and  the  acceptance  of  the  survey,  estop  the  commonwealth  from 
denying  the  plaintiffs'  title.  There  is,  perhaps,  no  absolute  neces- 
sity of  deciding  the  much  agitated  question,  whether  the  ninth 
section  of  the  act  of  the  8th  of  April,  1785,  be  general,  or  con- 
fined to  the  purchase  of  1784.  Independently  of  the  doubts 
expressed  by  some  of  our  predecessors,  for  whose  experience  and 
r^Af\n-\  judgment,  in  all  things  relating  to  titles  *to  real  estate, 
L  J  I  have  the  highest  respect,  I  am  inclined  to  believe,  the 
legislature  intended  to  establish  a  general  system,  operating 
alike  upon  all  the  lands  belonging  to  the  commonwealth.  Some 
of  the  sections  of  the  act,  doubtless  have  relation  merely  to  the 
act  of  1784 :  and  to  me  it  is  equally  plain,  that  others  have  a 
much  more  extensive  operation,  and  this  opinion  is  grounded  on 
the  preamble  to  the  act,  which  is  the  key  to  its  construction,  the 
import  of  the  sections  themselves,  the  mischiefs  which  were  felt, 
and  were  general,  and  not  merely  confined  to  lands  within  that 
purchase,  and  the  remedy  provided  by  the  legislature.  However 
that  may  be,  yet  it  appears  to  me,  that  independently  of  legis- 
lative enactments,  a  survey,  made  previous  to  a  warrant,  is  void, 
on  general  common  law  principles-;  because,  made  without  any 
authority  or  direction  from  the  government,  in  whom  the  power 
to  grant  is  vested,  to  the  deputy  surveyor.  The  mischief  which 
resulted  from  surveying  lands,  without  authority,  was  felt  at  an 
early  day ;  for  it  had  the  effect  of  retarding  the  settlement  of 
the  country,  an  object  of  primary  importance,  and  defrauded  the 
proprietaries,  by  preventing  the  sale  of  their  lands.  To  remedy 
the  evil,  which  in  practice,  prevailed  to  a  considerable  extent,  as 
early  as  the  3d  of  October,  1765,  the  proprietary  government 
made  an  order,  by  which  they  expressly  prohibited  the  deputy 
surveyors  from  surveying  any  of  the  proprietaries'  vacant,  or 
unappropriated  land  whatever,  on  any  ticket  or  order  from  any 
person  but  the  surveyor-general ;  nor  were  they  to  survey  any 
land,  unless  they  had  a  copy  of  a  regular  warrant,  or  applica- 
tion, numbered,  and  to  them  directed  by  the  surveyor-general 
himself,  or  by  his  order.  The  same  policy,  and  for  the  same 
reasons,  has  been  pursued  under  the  commonwealth,  as  appears 
from  the  act  of  the  8th  of  April,  1785,  and  of  the  3d  of  April, 
1792.  A  survey,  therefore,  after  this  proprietary  order,  and  in 
contradiction  of  the  policy  of  the  acts  of  assembly,  without  war- 
rant, could  produce  no  benefit  to  him  who  acted  knowingly 
against  law.  Whether  under  the  proprietary  government,  a  sur- 
456 


June  15,1829.]      OF  PENNSYLVANIA.  406 

[Barton  and  others  v.  Smith.] 

vey,  although  made  without  authority,  returned  to  the  office, 
accepted,  and  money  paid,  with  a  full  knowledge  of  all  the  cir- 
cumstances by  the  proprietary  agents,  would  give  title,  may  be 
an  inquiry  of  more  curiosity  than  use,  as  since  the  divesting  act 
of  the  27th  of  November,  1779,  a  different  state  of  things  has 
existed.  As  the  proprietaries  were  the  absolute  owners  of  the 
soil,  with  power  to  dispose  of  the  lands  in  such  manner,  and 
upon  such  terms  as  they  might  deem  most  advantageous  to  them- 
selves and  the  public,  a  subsequent  ratification  by  them,  with  full 
knowledge  of  the  facts,  would  upon  the  ordinary  principles  of 
principal  and  agent,  cure  any  irregularity  in  the  sale.  The  pro- 
prietary servants  had  not  merely  a  limited,  but  a  general  author- 
ity, which  was  a  power  necessary  for  the  correct  and  proper  dis- 
charge of  their  trust ;  and  hence,  I  believe,  there  is  no  instance  of 
their  refusing  to  ratify  the  acts  of  their  agents,  who  were  in  the 
habit  of  dispensing  with  the  general  rules  of  the  office,  where  no 
*injustice  had  been  done,  or  fraud  intended.  Hence,  r^.Ami 
there  was  an  implied  understanding,  that  in  the  purchase  •-  J 
of  lands  from  the  agents,  the  vendees  were  dealing  with  the 
principals,  and  upon  the  same  terms  as  if  they  were  personally 
present.  To  say,  therefore,  that  the  title  was  not  valid,  where 
the  survey  had  been  accepted,  and  money  paid,  with  a  full 
knowledge  of  all  the  circumstances,  and  without  any  intervening 
right,  would  have  been  a  fraud  upon  the  purchasers.  But  since 
the  revolution,  and  the  subsequent  appropriation  to  the  use  of 
the  commonwealth  of  the  proprietary  vacant  land,  circumstances 
have  entirely  changed.  The  officers  of  the  land  office,  under  the 
state  government,  are  as  much  bound  by  the  acts  of  assembly, 
as  any  other  citizens.  They  derive  their  authority  from  the 
law,  which  they  may  construe,  but  cannot  alter.  A  uniform 
practice  of  the  land  office  is  a  strong  evidence  of  the  law,  to 
which  the  courts  have  always  paid  great  respect,  particularly 
where  a  difference  in  construction,  where  there  is  room  for  it, 
would  unsettle  estates ;  but  that  they  can  disregard  the  plain 
injunction  of  an  act  of  assembly,  is  what  cannot  be  permitted. 
It  is  contrary  to  the  theory  of  our  government,  that  they  should 
have  a  dispensing  power,  and  in  this  consists  the  difference  in 
the  usages  of  the  present,  and  the  proprietary  government.  The 
court  are,  therefore,  of  the  opinion,  that  the  survey  being  made 
without  authority,  is  void  ;  and,  that  the  receipt  of  the  purchase- 
money,  and  the  acceptance  of  the  survey,  do  not  render  valid 
the  title  of  the  plaintiffs.  If  Mr.  Barton  and  the  officers  of  the 
land  office  acted  under  a  mistake,  it  is  a  strong  case  for  relief, 
by  an  application  to  the  legislature,  who  alone  can  refund  the 
money,  or  cure  the  defect  of  title.     The  legislature  alone,  stand 

457 


407  SUPREME  COURT  [Sunbury, 

[Barton  and  others  v.  Smith.] 

in  the  place  of  the  proj)rietaries,  with  full  power  to  relieve  the 
plaintiffs,  if  they  have  sustained  injury. 

Judgment  affirmed. 

Cited  by  Counsel,  13  N.  103;  s.  c.  9  W.  N.  C.  306. 

Cited  by  Court,  23  S.  320. 

Commented  on  in  Fox  v.  Lyon,  3  C.  16,  where  it  is  asserted  that  it  is  no 
authority  for  the  doctrine  that  a  record  of  the  land  oflBce  can  be  contradicted 
by  parol. 


[*408]  *[SuinJUKY,  June  16, 1829.] 

Brown  against  Dysinger  and  Another. 


Parol  evidence  of  declarations,  made  by  a  purcliaser  at  sherifTs  sale,  that 
he  was  bidding  for  another,  is  admissible  to  establish  a  trust  for  the  person  for 
whom  the  purchaser  declared  he  was  bidding. 

A  tender  of  money  in  behalf  of  an  infant,  made  by  his  uncle,  the  father 
being  dead,  but  the  mother  living,  held  to  be  good,  although  the  uncle  had 
not  then  been  appointed  guardian. 

A  tender,  partly  in  silver  coin,  and  partly  in  bank  notes,  offered  to  be  con- 
verted into  silver,  but  the  opposite  party  refusing  to  accept  any  money,  held 
to  be  good. 

The  words  "  any  earthly  property,"  in  a  will,  if  they  appear  from  the  con- 
text not  to  have  been  intended  to  include  real  estate,  will  be  confined  to  per- 
sonal property. 

If  a  naked  power  to  sell  be  given  to  executors,  the  land  in  the  meantime 
descends  to  the  heir,  and  an  ejectment  may  be  brought  for  it  in  his  name. 

A  lease,  unfairly  obtained  from  a  party  in  possession  of  the  land,  will  not 
prevent  the  lessee  from  contesting  the  title  of  the  lessor. 

Appeal  from  the  decision  of  a  Chief  Justice,  at  a  Circuit 
Court  held  for  Mifflin  county  in  April,  1 829. 

Ejectment  for  a  tract  of  land,  claimed  by  Samuel  Brown,  a 
minor,  suing  by  his  guardian,  William  Brown,  as  heir  at  law  to 
his  father,  Samuel  Brown,  against  Jacob  Dysinger  and  David 
Walker. 

On  the  trial  it  appeared,  that  the  premises  in  question  having 
been  taken  in  execution  on  a  levari  facias  af^ainst  Daniel  Short  el, 
were  exposed  to  sale  by  the  sheriff,  when  I)avid  Walker,  one  of 
the  present  defendants,  publicly  declaring,  that  he  was  bidding 
for  Samuel  Brown,  (the  father  of  the  plaintiff,  who  was  an  in- 
firm man,  in  poor  circumstances,  and  at  the  time  resident  on  the 
land,)  became  the  purchaser  for  the  sum  of  nine  hundred  dollars. 
That  sale,  however,  was  set  aside  on  some  ground,  not  material 
to  the  present  controversy,  and  a  second  sale  afterwards  took 
place,  when  David  Walker  repeated  the  jmblic  declaration,  that 
he  was  bidding  for  Samuel  Brown,  and  again  became  the  pur- 
458 


Junel5,lS29.]      OF   PENNSYLVANIA.  408 

[Brown  v.  Dysinger  and  another.] 

chaser  for  ten  hundred  and  fifty  dollars.  A  deed  was  executed 
to  David  Walker  by  the  sheriff,  bearing  date  November  22d, 
1822. 

The  plaintiff's  counsel  called  William  Zeigler,  to  prove  the 
declarations  made  by  David  Walker  at  both  the  sales,  to  which 
the  defendants'  counsel  objected,  but  the  court,  on  argument, 
permitted  the  evidence  to  be  given  ;  and  after  examining  Zeig- 
ler, and  several  other  witnesses  to  that  point,  a  tender  of  the 
purchase-money,  with  interest,  was  proved  to  have  been  made  to 
Walker,  by  the  uncle  of  Samuel  Brown,  who  was  not  then  his 
guardian,  though  subsequently  appointed  by  the  Orphans'  Court. 
The  mother  of  Samuel  *Brown  was  then  living.  The  r*4QQ-| 
tender  was  made  partly  in  bank  notes  and  partly  in  L  J 
silver  coin.  Walker  refused  to  receive  it ;  saying,  that  paper 
money  was  no  better  than  rags.  The  uncle  offered  to  convert  it 
into  money,  but  David  Walker  still  refused.  The  defendants 
gave  evidence  to  disprove  that  of  the  plaintiff,  in  regard  to  the 
transactions  at  the  time  of  the  sale,  and  further  gave  in  evidence 
the  will  of  Samuel  Brown,  which,  so  far  as  is  material  to  the 
explanation  of  this  case,  was  in  the  following  words  : — 

"  Respecting  any  earthly  property  which  God  hath  been 
pleased  to  give  me,  and  which  I  may  own  at  the  time  of  my 
dissolution,  I  order  as  follows,  viz. — That  all  my  property  be 
brought  to  public  sale  as  soon  after  my  death  as  may  be  deemed 
proper,  and  all  my  just  debts  paid  out  of  the  proceeds  thereof, 
after  discharging  the  funeral  expenses,  and  the  remainder  to  be 
appropriated  to  my  dearly  belowed  wife  Agnes,  and  now  sur- 
viving child,  Samuel,  if  any  remain  ;  and  do  appoint  my  beloved 
wife  and  Calvin  Blythe,  Esq.,  to  be  the  executors  of  this  my 
last  will,  and  that  it  may  be  executed  according  to  the  genuine 
intent  thereof.     In  witness,"  &g. 

They  likewise  gave  in  evidence  a  lease  of  the  premises  from 
David  Walker  to  Samuel  Brown,  dated  Deciember  30th,  1822. 
The  plaintiff,  to  rebut  the  last  mentioned  evidence,  called  a  wit- 
ness, to  show,  that  David  Walker  had  threatened  to  turn 
Samuel  Brown  out  of  possession,  if  he  did  not  execute  the 
lease  :  That  Brown  Avas  then  very  sick  with  a  consumption,  and 
died  some  time  in  the  following  month  of  August. 

The  jury,  under  the  direction  of  the  court,  found  a  verdict 
for  the  plaintiff,  and  a  motion  for  a  new  trial  on  the  part  of  the 
defendants  being  denied,  the  present  appeal  was  entered.  The 
reasons  filed  in  support  of  the  motion  were  as  follows  : — 

"  1.  Because  the  court  admitted  the  parol  evidence  offered 
by  the  plaintiff,  contrary  to  the  provisions  of  the  statute  of 
frauds  and  perjuries. 

459 


409  SUPREME  COURT  [Surdmry, 

[Brown  v.  Dysinger  and  another.] 

"  2.  The  court  erred  in  the  c»nstructiou  of  the  will  of  Samuel 
Brown,  in  deciding,  that  the  plaintiff  was  entitled  to  recover. 

"  3.  The  court  erred  in  deciding,  that  this  case  was  not  within 
the  statute  of  frauds  and  perjuries. 

"4.  The  court  erred  in  deciding,  that  William  Brown  had 
authority,  on  the  3d  of  January,  1824,  to  make  a  tender  to 
David  Walker  for  Samuel  Brown,  a  minor. 

"  5.  The  court  erred  in  refusing  to  instruct  the  jury,  that  the 
acceptance  of  the  lease  given  in  evidence,  by  Samuel  Brown, 
the  father  of  the  plaintiff,  was  a  release  and  abandonment  of 
his  claim,  under  the  alleged  parol  contract. 

"  6.  That  the  verdict  is  against  the  law,  the  evidence,  and  the 
justice  of  the  case. 

"  7.  That  the  tender  in  bank  notes  was  not  such  a  tender  as 
would  entitle  the  plaintiff  to  recover." 

The  argument  was  conducted  by  Potter  and  Blythe,  for  the 
r*4im  *^PP6llants. — The  first  and  third  exceptions  may  be 
L  J  taken  together.  They  present  the  main  question.  The 
act  of  March  21st,  1772,  for  the  prevention  of  frauds  and  per- 
juries, is  explicit,  that  no  estate  in  lands  greater  than  a  lease, 
not  exceeding  three  years,  can  be  created  otherwise  than  in 
writing.  No  parol  declarations  of  trust  in  the  case  of  a  larger 
estate  are  of  any  value.  It  is,  however,  admitted,  that  there 
are  two'  exceptions.  1.  The  case  of  a  resulting  trust ;  and  2. 
The  case  of  fraud.  By  a  resulting  trust,  we  understand  a  pur- 
chase by  A.  with  the  money  of  B.  If  A.  takes  a  conveyance 
of  the  legal  estate  to  himself,  and  it  is  clearly  and  unequivocally 
proved,  that  the  purchase  was  made  by  him  with  the  money  of 
B.,  he  becomes  the  trustee  of  B.  without  any  written  acknowl- 
edgment or  declaration  of  the  trust.  But  this  was  not  the  case 
in  the  present  instance.  Walker  had  no  money  of  Samuel 
Brown's  in  his  hands.  Brown  was  a  poor  man^  Walker  had 
no  claim  on  him  to  furnish  the  amount  paid  to  the  sheriff,  by 
way  of  reimbursing  himself  for  the  purchase ;  and  if  he  had 
possessed  any  evidence  to  charge  Brown,  the  latter  -was  unable 
to  raise  the  money.  The  great  rise  in  the  value  of  the  property 
has  led  the  friends  of  the  minor  to  come  forward,  after  the  death 
of  the  father,  make  a  tender,  and  bring  the  ejectment. 

It  is  not  a  case  of  fraud  either  in  fact  or  law.  The  case  of 
Thompson's  Lessee  v.  White,  1  Dall.  424,  which  will  be  cited 
against  us,  was  one  of  plain  fraud.  To  induce  the  wife  to  exe- 
cute a  deed,  the  husband  made  the  most  solemn  promise,  tliat 
he  would  by  will  or  otherwise,  settle  an  estate  in  a  manner  jire- 
viously  agreed  upon,  calculated  for  tlie  benefit  of  the  wife's 
relations.  The  husband,  surviving  the  wife,  retained  the  prop- 
,      460 


J'wne  15, 1829.]      OF  PENNSYLVANIA.  410 

[Brown  v.  Dysinger  and  another.] 

erty  as  his  own,  and  died  willioiit  making  such  provision. 
This  was  a  direct  fraud  upon  tlie  wife  and  those  who  were  in- 
tended to  take  after  the  husband's  death.  But  what  fraud  in 
respect  to  Brown  can  be  found  in  the  conduct  of  Walker?  Did 
Brown  conteniphite  bidding  himself,  and  was  he  prevented  from 
doing  so  by  the  declarations  sujiposed  to  have  been  made  by 
Walker?  If  Walker  had  not  bid  at  all,  would  Brown  have  been 
a  sufferer?  Would  he  hav^e  sustained  any  loss  whatever?  How 
then  can  he  or  his  heir  be  received  at  a  distant  time  to  gain 
by  an  act,  the  total  omission  of  which  Avould  have  been  no 
loss  to  him?  The  conveyance  of  the  sheriff  to  Walker,  to 
his  own  use,  in  fee,  was  an  act  of  legal  notoriety,  and  amounted 
to  constructive  notice  to  Brown  that  Walker  took  an  absolute 
estate  himself:  but  he  makes  no  application  to  the  court,  nor 
personally  to  Walker  to  have  his  imaginary  trust  declared. 
So  far  from  it,  that,  on  the  30tli  of  December,  about  six  weeks 
after  the  sale,  he  takes  the  lease  of  the  very  land  in  question 
from  Walker.  This  forms  our  fifth  exce])tion,  and  it  is  con- 
clusive. It  is  impossible  to  su])pose  that  Brown  had  the  most 
remote  idea  of  the  land  belonging  to  himself,  when  he  thus 
acknowledged  himself  to  hold  it  as  the  tenant  of  Walker, 
The  evidence,  which  in  all  cases  where  an  attempt  is  r*_(ii-| 
*niade  to  raise  a  trust  by  parol,  ought  to  be  full,  clear,  ^  J 
and  above  all  doubt,  was  confused  and  unsatisfactory  as  to 
the  declarations  of  Walker,  particularly  at  the  second  sale. 
(The  counsel  on  both  sides  remarked  minutely  in  the  testi- 
mony.) But  were  we  to  give  the  fullest  effect  to  the  plaintiff's 
testimony  on  this  head,  it  could  not  amount  to  more  than  a 
contract  on  the  part  of  Walker;  for  the  breach  of  which. 
Brown,  if  he  could  make  out  his  case,  would  be  entitled  to 
recover  damages.  Hughes  v.  Moore,  7  Cranch.  176  ;  Crop  v. 
Norton,  2  Atk.  74 ;  1  "^Bro.  Ch.  Ca.  92 ;  2  Johns.  Ch.  409  ;  2 
Mad.  Ch.  108,  109 ;  Wallace  v.  Duffield,  2  Serg.  &  Bawle,  526; 
Jones  V.  Peterman,  3  Serg.  &  Rawle,  546.  On  the  fourth 
exception,  they  denied  the  validity  of  the  tender  made  on  the 
3d  of  January,  1824,  by  William  Brown,  the  uncle  of  Samuel 
Brown,  No  person  had,  at  that  time,  been  a])pointed  by  the 
Orphans'  Court  guardian  of  the  minor.  The  mother,  the 
natural  guardian,  was  living.  The  uncle  was  appointed  guar- 
dian by  the  Orphans'  Court  on  the  twentieth  of  the  same 
month.  Till  then,  he  had  no  authority  to  act  on  the  part 
of  the  minor.  The  tender,  therefore,  was  the  act  of  a  stranger, 
and  could  not  inure  to  the  benefit  of  the  infant.  He  might 
have  disclaimed  it  when  he  attained  full  age.  It  did  not 
perfect  his  supposed  equitable  interest  as  heir  of  the  cestui 
que  trust,  and,  therefore,  he  cannot  support  an  ejectment.     The 

461 


411  SUPREME  COURT  [Sunbury, 

[Brown  v.  Dysinger  and  another.] 

tender  itself,  being  partly  made  in  bank  notes,  was  of  no 
effect,  by  whomsoever  it  was  made.  Under  the  second  ex- 
ception, it  was  argued,  that  the  ejectment  ought  to  have 
been  brought  in  the  name  of  the  executors  of  Samuel  Brown, 
and  not  in  the  name  of  the  minor.  "Any  earthly  property 
I  may  own,  &c."  is  to  be  construed  like  the  word  "  estate," 
in  other  wills,  or  "  my  lands."  The  power  to  sell,  given  to 
the  executors,  vests  the  interest  in  them  for  the  purpose  of  sale. 
7  Cranch,  176. 

To  these  arguments  it  was  answered  by  Blanchard  and  Hale, 
that  the  case  must  be  decided  on  other  principles  than  those 
which  apply  to  resulting  trusts.  Fraud,  either  in  fact  or  in  law, 
will  create  a  trust ;  and  the  fraud  may  be,  and  frequently  can 
only  be  proved  by  parol  testimony.  He  who  has  committed  the 
act  which  constitutes  the  fraud,  will  never  be  permitted  to  shel- 
ter himself  under  the  same  act.  Here  Walker  came  forward  as 
the  public  and  avowed  bidder  for  Brown.  The  bids  were  thus 
the  bids  of  Brown,  and  the  purchase  was  the  purchase  of  Brown. 
A  sense  of  humanity,  a  desire  not  to  put  to  inconvenience  a  sick 
man,  residing  on  the  premises,  must  have  had  an  effect  on  the 
by-standers ;  and  if  the  premises  were  consequently  sold  even  to 
a  small  amount  below  their  real  value,  it  was  fraud  in  Walker, 
after  playing  such  a  trick,  to  avail  himself  of  its  success,  and 
take  a  title  to  his  own  use.  The  case  is  quite  as  strong  as  that 
of  the  husband  in  Thompson's  Lessee  v.  White.  To  this  point 
they  cited  Gause  v.  Wiley,  4  Serg.  &  Rawle,  539  ;  1  Sm.  L. 
381 ;  Stewart  v.  Brown,  2  Serg.  &,  Rawle,  461  ;  Gregory's  Les- 
r*4l9T  ^^  ^*  ^^t^^^j  1  Dall.  193;  Lessee  of  German  *tj.  Gab- 
■-  -■  bald,  3  Binn.  302.  The  first  and  third  exceptions 
cannot,  therefore,  be  sustained.  The  second  applies  to  the  con- 
struction of  the  will.  Whether  the  words,  "  any  earthly  prop- 
erty," include  real  estate,  is  immaterial.  A  naked  authority 
to  sell  all  that  the  testator  orders  to  be  sold,  is  alone  given  to 
the  executors.  The  real  estate,  in  the  meantime,  descends  to 
the  heir  at  law.  But,  the  other  parts  of  the  will  sufficiently 
indicate,  that  he  was  speaking  only  of  personal  estate.  The  ac- 
tion was  rightly  brought  in  the  name  of  the  heir.  In  regard  to 
the  tender,  (fourth  exception,)  it  was  made  by  the  uncle  as  next 
friend  to  the  infant ;  and,  in  point  of  law,  he  was  more  properly 
to  be  considered  such  than  the  mother.  He  had  also  a  contin- 
gent interest  as  next  heir  to  his  nephew,  which  the  mother  was 
not.  If  a  proper  tender  is  made  on  behalf  of  an  infant,  in  a 
case  where,  if  of  a  full  age,  he  would  acquire  or  confirm  a  right 
by  a  tender,  it  shall  never  be  inquired  by  whose  hands  it  is 
made.  Johnston  v.  Gray,  16  Serg.  &  Rawle,  366.  Walker 
462 


June  15,  1829.]     OF   PENNSYLVANIA.  412 

[Brown  v.  Dysinger  and  another.] 

did  not  object  to  the  tender,  because  it  was  made  by  a  person 
not  regularly  appoiuted  guardian,  nor  because  it  consisted  ia 
part  of  bank  notes,  but  absolutely  refused  to  receive  any  money 
on  account  of  the  transaction,  persisting  to  hold  the  land. 

The  validity  and  effect  of  the  lease,  which  form  the  subject 
of  the  fifth  exception,  were  left  to  the  jury  under  all  the  cir- 
cumstances of  the  case ;  and,  they  have  found  it  not  to  be  a 
waiver  of  the  rights  of  Samuel  Brown.  Their  verdict  was 
just.  It  has  been  decided,  that  the  general  rule  which  pre- 
cludes a  tenant  from  disputing  the  title  of  his  landlord,  does 
not  apply  where  the  lease  has  been  obtained  by  misrepresenta- 
tion or  'fraud.  Miller  v.  M'Brier,  14  Serg.  &  Rawle,  382. 
Here,  it  was  a  part  of  the  system  of  fraud,  which  tinctured  ihe 
whole  of  the  transaction  on  the  part  of  Walker,  to  present 
himself  to  Brown  as  the  legal  owner  of  the  land,  and  to  threaten 
him  with  expulsion  if  he  did  not  execute  the  lease.  Robinson 
V.  Eldridge,  10  Serg.  &  Rawle,  140.  On  the  whole,  it  was  con- 
tended, that  the  verdict  was  consistent  with  natural,  and  tech- 
nical equity,  and  ouglit  not  to  be  disturbed.  1  Smith's  Laws, 
391 ;  1  Dall.  193. 

The  opinion  of  the  coirrt  was  delivered  by 

Smith,  J. — This  was  an  ejectment  for  a  tract  of  land  in  Mif- 
flin county,  alleged  to  have  been  purchased  by  David  Walker, 
the  defendant,  for  the  use  of  the  plaintiff,  in  which  both  parties 
claimed  under  the  same  title.  The  cause  was  tried  before  Chief 
Justice  Gibson,  on  the  15th  of  April,  1829,  when  a  verdict  was 
passed  for  the  plaintiff,  and  a  motion  for  a  new  trial  was  over- 
ruled; whereupon,  the  defendants  apj)ealed  to  this  court.  Seven 
reasons  are  assigned  for  a  new  trial,  of  which  the  first,  third, 
and  sixth,  may  Idc  considered  together.  The  substance  of  these 
reasons  is,  that  the  parol  evidence  admitted,  was  contrary  to  the 
provisions  of  the  statute  of  *frauds  and  perjuries  ;  that  r^  . ,  on 
the  court  erred  in  deciding,  that  the  case  was  not  within  ■-  '  ^ 
that  statute ;  and,  that  the  verdict  was  against  the  law,  evidence 
and  justice  of  the  case. 

It  is  alleged,  that  the  difficulty  in  this  case  arises  from  our 
act  of  assembly  for  the  prevention  of  frauds  and  perjuries,  ia 
which  it  is  declared,  that  no  interest  in  lands  shall  pass,  but  by 
deed  or  note,  in  writing;  and,  it  is  contended,  that  no  parol 
proof  can  be  admitted  to  contradict,  add  to,  diminish,  or  vary  a 
deed  or  writing ;  that,  although  there  are  exceptions  to  the  rule, 
and  cases  may  be  found,  in  which  parol  proof  has  been  received, 
notwithstanding  deeds  had  passed  between  the  parties ;  yet,  the 
proof  offered  and  given  in  this  case,  is  not  within  the  exce])tions, 
nor  the  decisions  of  those  cases ;  because,  the  parol  evidence, 

4G3 


413  SUPREME  COURT  [Sunbury, 

[Brown  v.  Dysinger  and  another.] 

directly  contradicted  the  sheriff's  deed  to  David  "Walker ;  and 
in  short,  that  the  evidence  of  the  parol  agreement  set  up,  was 
not  full  and  explicit. 

This  testimony,  on  a  fair  and  candid  examination,  will  not,  I 
apprehend,  be  found  liable  to  these  objections.  The  witnesses 
have  stated  explicitly,  that,  at  the  sale,  David  Walker  declared 
he  was  buying  the  land  for  Samuel  Brown,  and  at  diiferent  times, 
after  the  sale,  said  he  had  bought  it  for  him;  that  when  the 
crier  asked  him  for  the  customary  fee  on  sales,  he  declared  that 
he  had  bought  for  his  friend  Samuel  Brown,  whose  circumstances 
he  knew,  and  therefore,  should  not  ask  the  fee,  and  that  this 
took  place  at  the  second  sale.  It  also  appeared,  that  Samuel 
Browu  was  a  sickly  man,  and  was  so  long  before,  and  at  the  time 
of  the  sale.  From  James  Kinsloe's  testimony,  it  appeared,  that 
one  Myers  was  bidding  for  the  land  at  the  first  sale ;  at  which 
time,  David  Walker  and  the  witness  stated  to  Myers,  that  he, 
David  Walker,  was  bidding  the  land  in  for  Samuel  Brown  ;  that 
on  this,  Myers  ceased  to  bid,  and  shortly  after,  the  land  was 
struck  off  to  David  Walker.  Other  Avitnasses  proved,  that  David 
Walker  declared  he  was  buying  the  land  for  Samuel  Brown. 
And  William  P.  Elliot  says,  he  thought,  though  he  was  not 
certain,  it  was  entered  on  the  sheriff's  list,  "  bought  by  Walker 
for  Brown."  The  question  then  is,  whether  the  engagement  of 
David  Walker,  concerning  this  land,  although  not  in  writing,  is 
made  void  by  our  act  for  preventing  frauds  and  perjuries;  which, 
in  fact,  was,  and  is  the  turning-point  of  the  cause.  We  are  of 
the  opinion  that  it  is  not,  and  that  the  parol  evidence  was 
properly  admitted  by  the  Chief  Justice  on  the  trial  of  the  cause. 
The  object  of  the  act  was,  the  prevention  of  fraud  ;  and,  to  allow 
it  to  be  interposed  as  a  bar  to  the  performance  of  this  parol  en- 
gagement, would,  in  my  opinion,  encourage  the  very  mischief 
which  the  legislature  intended  to  prevent.  David  Walker,  at 
the  sheriff's  sale,  declared,  again  and  again,  that  he  purchased 
for  Samuel  Brown.  Although  he  afterwards  obtained  a  deed  for 
the  land  from  the  sheriff  to  himself;  yet,  in  equity,  he  was, 
under  the  circumstances,  a  trustee  for  Samuel  Brown,  for  the 
engagement  he  had  made  inured  to  Brown's  benefit ;  and  to  this 
r*41 41  ^ff^^t  is  *^^  decision  in  the  case  of  *Stewart  v.  Brown, 
L  J  2  Serg.  &  Rawle,  461.  To  me  it  is  evident,  that  the 
conduct  of  David  Walker,  was  calculated  to  do  an  injury  to 
Samuel  Brown,  inasmuch  as  it  prevented  others  from  bidding  and 
purchasing ;  for  his  declarations  clearly  led  those  inclined  to 
purchase,  to  believe  he  was  acting  for  a  poor  man,  that  he  was 
buying  for  him,  and  not  for  himself.  No  doubt  Samuel  Brown 
was  induced  by  David  Walker  to  rely  on  him,  and,  therefore,  did 
not  take  any  other  steps  to  secure  the  land,  and  David  Walker 
464 


June  15, 1S29.]     OF   PENNSYLVANIA.  414 

[Brown  v.  Dysinger  and  another.] 

should  not  reap  the  benefit  of  such  conduct ;  nor  can  he,  for  a 
trust  thereby"  arises  to  Samuel  Brown,  for  whom  he  becomes  a 
trustee.  To  decide  otherwise,  and  allow  him  to  hold  the  land, 
under  such  circumstances,  would  be  supporting  a  breach  of  trust, 
and  a  fraud  in  law.     See  4  Serg.  &  Rawle,  539,  540,  and  570. 

But,  in  addition  to  all  this,  it  appears,  that  Samuel  Brown  was 
sickly,  poor,  and  wholly  unable  to  purchase  himself;  he  there- 
fore entered  into  an  arrangement  with  David  Walker,  to  purchase 
the  land  for  him.  To  this.  Walker  freely  agreed,  and  I  believe 
at  the  time,  fairly  and  honestly,  intended  to  live  up  to  the  ar- 
rangement. Shall  he,  when  Samuel  Brown  is  dead  and  gone, 
be  permitted  to  say,  "I  did  not  so  purchase,  I  am  not  a  trustee 
for  him?" — The  first  sale  was  set  aside,  and  some  time  elapsed 
before  the  second  sale.  David  Walker,  at  the  second  sale,  de- 
clared again,  that  he  was  purchasing  for  the  use  of  Samuel 
Brown  ;  he  therefore  must  have  considered  the  first  arrangement 
in  full  force  at  the  time ;  and  immediately  after  this  sale,  we 
find,  Samuel  Brown  claimed  the  land  as  his.  If  then  both 
parties  considered  the  arrangement  in  full  force  at  the  second 
sale,  I  am  at  a  loss  to  discover  any  difficulty  in  this  case ;  but 
must  say,  that  the  jury  were  right  in  finding  for  the  plaintifi^,. 
and  thereby  declaring  that  David  Walker,  the  purchaser,,  not- 
withstanding he  has  the  legal  title,  is  a  trustee,  holding^  for 
Samuel  Brown.  If  David  AValker  did  not  act,  and  purchase  for 
Samuel  Brown,  I  would  ask,  how  are  we  to  account  for  his  re- 
peated declarations  ?  Were  they  merely  made  to  prevent  others 
from  bidding,  and  enable  him  to  purchase  the  land  for  his  own 
use,  as  cheap  as  possible  ? — And  if  so,  shall  he  be  the  gainer, 
and  reap  the  benefit  of  this  deception,  by  appropriating  the  land 
to  himself? — This  would  be  unjust  and  fraudulent.  Such  con- 
duct would,  in  the  language  of  the  Chief  Justice,  stop  his  mouth 
ever  after,  from  asserting  anything,  contrary  to  what  he  de- 
clared at  and  after  the  sale.  David  Walker  ought  to  set  this 
matter  right ;  he  has  the  opportunity  of  doing  so,  by  conveying 
the  land  to  the  plaintiff,  and  taking  from  the  office  his  money 
tendered  to  him ;  if  he  does  not,  he  may  be  compelled  to  set  it 
right,  under  the  equitable  powers  of  our  courts  of  justice. — A 
majority  of  the  court  are  of  the  opinion,  that  the  parol  evidence 
was  properly  received,  and  that  there  was  proved  not  only  a 
fraud  in  David  Walker,  but  a  trust  which,  though  not  declared 
in  writing,  was  valid,  notwithstanding  the  act  of  frauds  and  per- 
juries. The  verdict  then  was  not  against  the  law,  *the  r^^,.  f,-, 
evidence,  and  the  justice  of  the  case,  and  a  new  trial  L  -■ 
was  properly  refused. 

But  it  is  said,  (in  the  second  reason  for  a  new  trial,)  that  the 
court  erred  in  the  construction  of  the  will  of  Samuel  Brown. 

VOL.  I.— 30  465 


416  SUPREME  COURT  [Sunbury, 

[Brown  v.  Dysinger  and  another.] 

It  is  contended  that  Samuel  Brown's  estate  or  interest  in  this 
land,  if  he  had  any,  by  his  will,  vested  in  his  executors  ;  that 
his  intention  was  to  dispose  of  all  his  estate ;  that  the  words 
"all  my  earthly  property,"  were  sufficiently  large  to  include 
real  estate ;  and,  that  therefore  his  executors  should  have  sued. 
It  is  true,  the  word  "  property,"  may  sometimes  include  land. 
6  Serg.  &  Rawle,  456.  But  in  this  will,  there  was  no  direction 
to  sell  the  land,  and,  therefore,  there  is  nothing  to  prevent  the 
heir  from  suing.  I  think  the  word  property  was  not  intended 
to  include  land,  because,  there  are  iu  the  will  no  words  of  in- 
heritance or  perpetuity,  applicable  to  the  land ;  and  it  will  not 
do  to  disinherit  the  heir  by  mere  implication  or  presumption. 
2  Binn.  20;  3  Binn.  488.  Here  it  is  evident,  it  was  intended 
to  include  personal  property  only,  and  the  intention  of  the  tes- 
tator must  govern.  This  objection  to  the  verdict  is  therefore 
not  sustained. 

The  fourth  and  seventh  reasons,  assigned  for  a  new  trial,  will 
be  considered  together.  It  is  alleged,  that  the  court  erred  in 
deciding,  that  William  Brown  had  authority,  on  the  third  of 
January,  1824,  to  make  a  tender  to  David  Walker  for  Samuel 
Brown,  the  minor.  It  is  true,  he  had  not  at  that  time  been 
legally  appointed  the  guardian  of  the  minor ;  but  he  was  his 
uncle,  and  surely  one  so  near  in  blood  may  lawfully  interpose  as 
his  next  friend.  We  think  an  infant  ought  not  to  lose  his  in- 
heritance, merely  because  he  has  no  guardian  ;  his  uncle  or  next 
friend  may  act  for  him ;  he  did  so  here ;  the  tender  by  him  was 
well  made.  But  it  is  said  it  was  in  bank  notes,  and  there- 
fore not  legal.  It  was  partly  in  bank  notes,  but  the  uncle 
offered  to  exchange  them  for  silver  : — Walker  thereupon  refused, 
and  said  he  would  have  none  of  it ;  so  that  after  such  a  declara- 
tion, it  was  not  necessary  to  do  more,  and  the  tender  was  good 
and  sufficient. 

In  the  last  place  (the  fifth  reason),  it  is  contended,  that  the 
acceptance  of  a  lease  by  Samuel  Brown  from  Daniel  Walker, 
was  an  abandonment  of  his  claim.  However  strong  this  circum- 
stance may  appear,  it  is  to  be  remembered,  that  it  was  con- 
tended on  the  evidence  in  the  cause,  that  the  lease  was  improp- 
erly obtained,  and  at  a  time  when  Samuel  Brown,  in  his  then 
state  could  not  refuse  to  sign  it.  Whether  it  was  so  obtained, 
was  submitted  to  the  jury  with  all  the  facts  attending  it ;  the 
jury  have  passed  on  it,  and  found  it  under  the  circumstances, 
not  to  be  a  waiver  or  abandonment  of  right.  I  think  the  sub- 
mission to  the  jury  for  their  decision  was  correct.  A  tenant 
may  impeach  his  landlord's  title,  if  induced  to  take  a  lease  by 
misrepresentation  and  fraud.  Miller  v.  M'Brier,  14  Serg.  & 
466 


June  15, 1S29.']      OF  PENXSYLVANIA.  415 

[Brown  v.  Dj^singer  and  another.] 

Rawle,  382,  and  Hamilton  v.  Marsden,  6  Binn.  45 ;  r^ , -.  ^-i 
*iu  which  case  it  was  lield,  that  the  lessee  might  con-  L  J 
test  the  title  of  the  lessor,  where  he  threatened  to  turn  the 
lessee  off,  if  he  did  not  take  a  lease.  By  the  verdict  in  the  case 
before  us,  the  lease  was  impeached.  We  have  then  presented 
to  us,  the  case  of  an  agent  of  a  poor  and  sick  man,  conducting,  if 
not  in  bad  faith,  at  least  fraudulently  in  law :  we  see  a  trust 
proved,  and  a  legal  fraud  in  the  agent,  and  we  are  called  upon, 
to  pronounce  the  operation  of  the  law  in  such  a  case.  Our 
answer  is,  that  David  Walker  should  transfer  the  land  to  the 
plaintiff  according  to  the  trust.  If  this  be  refused,  it  is  in  this 
state  to  be  enforced  by  an  ejectment^  for  having  no  court  of  equity, 
we  consider  that  as  already  done,  which  in  equity,  ought  to  have 
been  done;  and  therefore,  in  a  case,  in  which  a  court  of  equity 
would  decree  a  trust,  or  direct  a  conveyance,  the  courts  of  this 
state,  with  the  aid  of  a  jury,  will  enforce  the  same  by  a  re- 
covery of  the  land  in  an  action  of  ejectment.  I  refer  to  Stew- 
art V.  Brown ^  2  Serg.  &  R-awle,  461 ;  Vincent  v.  Huff,  4  Serg. 
&  Rawle,  298 ;  Gause  v.  Wiley,  4  Serg.  &  Rawle,  538,  and 
Peebles  v.  Reading,  8  Serg.  &  Rawle,  484.  The  motion  for  a 
new  trial  is  therefore  denied,  and  the  judgment  of  the  Circuit 
Court  affirmed. 

Tod,  J.,  dissented,  and  delivered  the  following  opinion  : — I 
do  not  take  it  to  be  at  all  material  in  the  present  case,  that  the 
fourth  section  of  the  British  statute  of  frauds  and  perjuries  is 
omitted  in  our  act  of  assembly ;  for  it  is  not  damages,  that  are 
now  demanded  for  non-performance  of  an  alleged  parol  con- 
tract ;  but  the  plaintiff  sues  by  ejectment,  claiming  possession 
of  the  land  itself,  and  alleging  an  actual  transfer  of  the  title. 

Beyond  a  doubt  the  words  of  the  act  of  assembly  are  clear 
and  positive  against  the  plaintiff,  but  for  a  long  course  of  years, 
perhaps  from  the  date  of  the  British  statute,  parol  titles, 
created  under  certain  particular  circumstances,  have  been  sus- 
tained by  the  rules  of  equity  against  the  strict  words  of  the  law, 
by  a  train  of  decisions  sanctioned  sometimes  by  legislative  au- 
thority, so  that  there  are  now  admitted  decided  exceptions,  as 
well  known  as  the  law  itself.  But  it  certainly  has  for  many 
years  past  been  usual  for  courts  of  justice  to  regret,  that  these 
exceptions  were  ever  made  from  the  statute  by  construction,  and 
to  declare  that  under  no  pretence  whatever,  should  any  new  ex- 
ceptions be  introduced. 

In  my  opinion,  most  clearly  the  Chief  Justice  was  right  in 
admitting  the  evidence  as  offered.  But  after  the  whole  evidence 
had  been  heard,  was  it  such  as  to  take  the  case  out  of  the  stat- 
ute, and  give  a  title  to  land :  or  in  other  words,  the  jury  hav- 

467 


416  SUPREME  COURT  [Sunbury, 

[Brown  v.  Dysinger  and  another.] 

iug  upon  such  proof  found  a  verdict  for  the  plaintiff,  ought  the 
court  now  to  interfere  and  set  aside  the  verdict  ?  Has  the  parol 
title  here  been  made  out  by  proof  so  unexceptionably  clear,  as 
to  bring  the  case  within  any  of  the  established  exceptions  to  the 
statute  ? 

r*4i  71  *-^  must  say,  that  to  me  the  verdict  appears  to  be 
L  -J  decidedly  against  the  weight  of  evidence.  The  testi- 
mony is  by  parol  throughout.  There  is  no  part  performance : 
no  fact :  no  one  single  act  done,  or  offered  to  be  done  by  Walker, 
or  by  Samuel  Brown,  Jr.  Mere  words  spoken,  which  in  their 
own  nature  are  so  exceedingly  easy  to  be  mistaken  or  perverted, 
form  the  whole  of  the  plaintiff's  title  in  this  ejectment. 

Whatever  there  is  of  fraud  or  trust  in  the  case,  upon  which 
Brown's  equitable  claim  is  supported  against  the  legal  title  of 
Walker,  depends  upon  four  witnesses,  Zeigler,  Kinsloe,  Elliot 
and  Warwick.  These  four  principal  witnesses  were  called  by 
the  plaintiff,  and  one  witness  by  the  defendant.  To  show  how 
little  dependence  is  to  be  put  upon  the  remembrance  of  words 
spoken  relative  to  contracts  for  real  estate,  it  ha2)pens  that  the 
plaintiff's  witnesses  agree  neither  with  the  defendant's  witness, 
nor  with  each  other.  Zeigler  and  Elliot,  concur  in  stating  that 
Walker  repeatedly  declared  that  he  was  buying  the  land  for 
Brown ;  but  the  only  circumstance  which  makes  this  evidence  of 
any  use  in  the  case,  viz.,  that  these  declarations  were  at  the  time 
of  the  second  sale  by  the  sheriff,  is  positively  denied  by  Kinsloe, 
who  swears  that  all  those  declarations  by  Walker,  were  at  the  first 
attempt  to  sell,  one  full  year  before,  and  that  not  one  word  was 
uttered  upon  the  subject  at  the  second  sale.  Kinsloe  adds  further 
a  most  material  fact,  that  one  condition  of  Walker's  promise  at 
the  first  sale  was,  that  a  debt  due  from  Brown  to  Walker  was  to 
be  let  in,  as  the  witness  called  it,  and  paid.  Kinsloe  swore  also 
that  there  was  an  express  exception  of  a  few  acres,  how  many 
he  did  not  say,  for  Nancy  Ferguson  near  the  still  house,  stating 
the  reasons  for  the  exception.  Warwick,  the  fourth  of  the  plain- 
tiff's witnesses,  who  was  present  at  the  second  sale,  proves  these 
words  by  Walker.  "  I  intend  to  give  it  to  Brown,  and  I  intend 
to  let  Kinsloe  have  a  chance  of  the  part  he  is  concerned  in  ;  and 
I  will  reserve  a  part  for  Nancy  Ferguson."  On  cross-examina- 
tion, Warwick  stated  further,  that  Walker  at  the  same  time  com- 
plained that  Brown  had  disappointed  him  in  money,  but  the  wit- 
ness could  not  recollect  the  particulars. 

Curran,  the  defendants'  witness,  states  a  material  fact,  unsaid 
by  any  of  the  rest,  that  another  condition  of  the  arrangement  at 
the  first  sale  was,  that  Brown  was  to  pay  down  four  hundred 
dollars,  and  this  is  f^trongly  confirmed  by  Kinsloe,  stating  that 
Walker  was  not  to  lay  out  his  own  money. 
468 


/wn€l5,1829.]       OF  PEXXSYLVANIA.  417 

[Brown  v.  Dysinger  and  another.] 

Clearly,  if  any  single  fact  is  well  made  out  by  the  evidence,  it 
is  that  some  reservation  was  intended  for  Nancy  Furguson.  But 
without  any  notice  of  the  positive  exception  on  her  behalf,  the 
jury  have  awarded  the  whole  tract  to  the  plaintiff  directly  against 
his  own  proof. 

Curran  and  Kinsloe,  were  the  only  witnesses  who  ever  saw 
Walker  and  Brown  together  conferring  upon  the  subject  of  the 
land.  They  both  prove  some  essential  previous  condi-  r^ . ,  ^.-i 
tions  *  which  the  plaintiff  did  not  pretend  were  per-  L  -• 
formed.  There  is  nothing  improbable  in  Avhat  they  swore.  The 
reverse  would  seem  to  be  absolutely  incredible.  Yet  the  jury 
would  appear  to  have  totally  disregarded  the  only  witnesses  who 
were  present  when  the  two  parties  were  together,  and  who,  if  a 
parol  bargain  existed,  could  be  able  to  state  the  terms  of  it  with 
any  correctness.  The  jury  have  depended  rather  upon  loose 
accidental  expressions,  uttered  without  connection  or  meaning  as 
far  as  the  full  terms  of  a  contract  are  necessary  to  understand 
the  meaning  of  it ;  and  of  all  the  witnesses  who  prove  these 
loose  uncertain  expressions  only  one  of  them,  Elliot,  has 
thought  it  material  to  mention  that  Walker  was  intoxicated  at 
the  time. 

It  is  an  established  rule  of  chancery  never  to  decree  against 
the  words  of  the  statute  of  frauds,  in  any  case  whatever  upon 
mere  parol  proof,  where  that  proof  is  contradictory.  Rowton  v. 
Rowton,  1  Hen.  &  Munf.  91. 

My  impression  is,  that  the  plaintiff  could  not  recover  the  land, 
even  if  the  statute  of  frauds  were  not  in  his  way.  But  under 
that  statute,  beyond  a  question,  the  verdict  appears  to  me  to  be 
wrong.  There  is  in  the  case  no  part  performance,  nor  the 
pretence  of  it.  But,  it  is  argued  at  bar,  here  is  a  trust,  a 
fraud,  which  I  deny,  if  by  trust  and  fraud,  are  meant  the 
same  things  that  are  meant  by  those  words  in  a  court  of  equity. 
Such  a  trust  is  not,  as  far  as  I  can  disc;;ver,  to  be  found  in 
any  chancery  proceedings,  as  that  of  a  man  having  purchased 
a  legal  title  to  land  in  his  own  name,  with  his  own  money, 
being  called  on  and  enforced  to  convey  to  another,  by  parol 
proof  of  a  bare  promise  without  consideration,  the  merest 
nudum  pactum,  in  favour  of  one  whose  sole  interest  in  the  title 
was  what  the  promise  created.  There  appears  no  more  fraud 
here  than  what  is  implied  in  every  non-performance  of  a  promise. 
An  action  at  law  could  not,  I  think,  be  sustained  for  damages 
for  breach  of  such  engagement.  And  as  to  chancery,  it  is  laid 
down  that  even  before  the  statute  of  frauds,  equity  would  not 
execute  a  mere  parol  agreement  not  in  part  performed.  Sugden 
on  Vend.  86. 

That  a  gratuitous  promise  will  not  support  a  bill  in  equity, 

469 


418  SUPREME  COUET  [Sunbury, 

[Brown  v.  Dysinger  and  another.] 

any  more  than  it  will  an  action  at  law  is  shown  by  3  P.  Wms. 
131,  31 7  ;  1  Vern.  12  ;  1  Ves.  507  ;  2  Ves.  310,  547  ;  7  Johns. 
Rep.  207,  332  ;  10  Johns.  246,  594. 

There  are  many  authorities  which,  in  my  opinion,  would  clearly 
show  that  the  present  case  is  not  one  calling  for  equitable  relief 
against  the  words  of  the  statute.  1  P.  Williams,  771  ;  5  Mass. 
133;  1  Cessans.  289;  9  Mass.  510,  533;  11  Mass.  342 ;  15 
Mass.  85;  16  Mass.  221  ;  4  Cranch,  235;  5  Johns,  Rep.  272.; 
1  Root,  59,  549;  3  Johns.  Rep.  216;  7  Cranch,  176;  Prec. 
Chancery,  69 ;  Smith  L.  393,  notes. 

But  the  main  thing  in  the  case  is  the  inconclusiveness  of  the 
proof.  Even  Brown  himself,  though  he  lived  for  about  a  year 
after  Walker's  deed  from  the  sheriif,  and  during  nearly  the 
r*41Ql  w^^^l®  *of  that  time  appears  to  have  been  in  full  posses- 
L  -•  sion  of  his  faculties,  and  attending  to  his  business  ;  and 
though  two  or  three  witnesses  swear  to  his  declarations  relative 
to  the  land,  yet,  during  all  that  time,  there  is  not  the  least 
evidence,  that  he  alleged  any  trust  or  charged  David  Walker 
with  any  fraud,  or  pretended  to  have  any  shadow  of  title  to 
the  land ;  but,  on  the  contrary,  'took  a  lease  for  a  year  on  the 
shares,  binding  himself  to  keep  up  the  fences,  and  restore  the 
possession. 

This  lease  would,  I  apprehend,  amount  to  a  discharge  and 
surrender  of  parol  claims  to  the  land,  if  he  had  any.  It  is 
argued,  that  this  coming  under  lease  must  have  been  compul- 
sory. There  is  no  proof  of  compulsion,  nor  to  my  mind,  any 
probability  of  it ;  for  the  man's  last  will,  drawn  apparently 
with  the  utmost  care  and  minuteness,  and  specifying  some  of 
the  smallest  articles  of  personal  property,  yet  mentions  not  a 
syllable  about  the  plantation  of  which  this  verdict  says  he  was 
then  the  owner  of. 

If  the  statute  of  frauds  cannot  protect  David  Walker  in 
his  legal  title,  there  seems  one  peculiar  hardship  in  his  case. 
In  England,  and  in  all  those  states  in  which  courts  of  equity 
are  established,  the  man  whose  freehold  is  attacked  by  parol 
proof  and  alleged  promises,  would  generally  have  the  privilege 
to  be  himself  sworn,  and  on  his  oath  to  contradict  or  explain 
the  evidence.  But  by  our  mode  of  proceeding  in  Pennsyl- 
vania, Walker's  mouth  is  closed.  So,  that  a  witness  who 
arrives  at  the  middle  of  a  conversation,  may  be  sworn  as  to 
one-half,  without  the  right  of  the  defendant  even  to  state  to 
the  jury  what  the  other  half  was.  In  my  opinion,  the  parol 
proof  which  is  to  dispense  with  the  statute  of  frauds,  ought  to 
be  stronger  and  clearer  here  than  in  any  country  where  they 
have  a  special  chancery  jurisdiction.  The  verdict  being,  as  I 
470 


June  15, 1829.]       OF  PENNSYLVANIA.  419 

[Brown  v.  Dysinger  and  another.] 

think,  decidedly  against  evidence  and  law,  I  am  for  setting  it 
aside,  and  awarding  a  new  trial. 

Rogers,  J.,  and  Huston,  J.,  were  absent. 

Judgment  affirmed. 

Cited  by  Counsel,  1  Penn.  R.  392,  405 ;  2  Wh.  468 ;  3  Wh.  491 ;  6  Wh. 
239  ;  5  W.  389  ;  6  W.  130,  138  ;  8  W.  50 ;  5  W.  &  S.  432 ;  2  Barr,  123  ;  12  H. 
110 ;  1  C.  66  ;  5  C.  250 ;  7  C.  518 ;  11  C.  109  ;  2  G.  108  ;  3  S.  149 ;  19  S.  446 ; 
21  S.  270  ;  14  N.  382  ;  4  O.  3 ;  s.  c.  11  W.  N.  C.  318 ;  5  O.  68. 

Cited  bv  the  Court,  2  W.  325 ;  6  W.  322,  541 ;  9  W.  36  ;  1  H.  455 ;  9  C.  165 ; 
23  S.  301;  1  N.  464. 

Exphiined  in  10  W.  320,  and  said  the  declaration  of  a  vendee  at  sherifl's 
sale  tliat  he  is  purchasing  for  another,  will  not  create  a  resulting  trust  unless 
there  is  "  mala  fides,"  whicli  doctrine  is  approved  in,  6  H.  128. 

In  19  S.  88,  Williams,  J.,  makes  this  comment  on  the  principal  case: 
"There  a  purchaser  at  sheriff's  sale  openly  declared  that  he  was  bidding  the 
property  for  the  plaintiff's  ancestor,  who  subsequently  took  from  him  a  lease 
of  the  premises,  and  it  was  held  that  whether  his  acceptance  of  the  lease 
amounted  to  a  waiver  and  abandonment  of  his  claim,  was  properly  left  to  the 
decision  of  the  jury.  Though  this  case  has  been  greatly  criticised  on  other 
grounds,  and  the  dissenting  opinion  of  Tod,  J.,  is  now  regarded  as  a  sounder 
exposition  of  the  law  arising  on  the  facts  of  the  case  than  the  opinion  of  the 
majority,  yet  its  ruling  in  this  respect  has  never  been  doubted,  &c." 


*[Sttnbuby,  June  15,  1829.]  [*420] 

Williams,   Executor   of    Pennock,   against   Carr    and 

Another. 

IN  ERROR. 

Where  a,  fieri  facias  has  lain  in  the  sheriff's  hands  six  years,  and  is  then  re- 
turned nulla  bona,  such  return  will  not  preclude  the  admission  of  evidence  to 
contradict  it. 

A  court,  in  submitting  presumptive  evidence  to  the  jury,  may  give  its  opinion 
on  the  weight  of  the  testimony,  but  cannot  preclude  the  jury  from  deciding  for 
themselves. 

The  party  who  requests  an  opinion  from  the  court,  on  the  effect  of  testimony, 
cannot  assign  for  error  a  compliance  with  his  request. 

Error  to  Lycoming  county. 

The  facts  of  this  case  are  so  fully  set  forth  in  the  opinion  of 
the  court,  delivered  by  Smith,  J.,  that  it  is  unnecessary  to  give 
any  other  statement  of  them. 

Anthony  and  Bellas,  who  appeared  for  the  plaintiffs  in  error, 
cited  the  following  authorities  : — Phillips  v.  Hyde,  1  Dall.  439  ; 
Shewell  v.  Fell,  3  Yeates,  17,  18  ;  4  Yeates,  47  ;  Selin  v.  Snyder, 
7  Serg.  &  Rawle,  172;  Blythe  v.  Richards,  10  Serg.  &  Rawle, 
261 ;   Hunt  v.   Breading,   12   Serg.  &   Pawle,  37 ;   Diller  v. 

471 


420  SUPREME  COURT  [Sunbury, 

[Williams,  Executor  of  Pennock,  v.  Carr  and  another.] 

Roberts,  13  Serg.  &  Rawle,  60;  6  Com.  Dig.  Return,  G. ;  4 
Mass.  Rep.  478  ;  11  Mass.  163 ;  20  Johns.  49  ;  4  Am.  Dig.  66, 
pi.  713;  1  Pick.  271. 

Greenough,  for  the  defendants  in  error,  cited  2  Tid.  Pr. 
1047  ;  10  Mass.  Rfep.  101 ;  Wiedman  v.  Weitzel,  13  Serg.  & 
Rawle,  96. 

The  opinion  of  the  court  was  delivered  by  / 

Smith,  J. — George  Pennock,  deceased,  in  his  lifetime  ob- 
tained, on  the  5th  of  December,  1798,  a  judgment  in  the  Court 
of  Common  Pleas  of  Lycoming  county,  for  one  hundred  and 
thirty-nine  pounds  twelve  shillings  and  nine  and  a  half  pence, 
with  interest  from  the  12th  of  April,  1798.  AJia-i  facias  was 
issued  thereon,  returnable  to  the  September  Term,  1799,  and 
was  returned  "nulla  bona."  An  alias  jieH  facias  issued  to 
February  Term,  1800,  to  which  the  sheriff,  on  the  12th  of 
February,  1806,  returned  "nulla  bona."  To  the  September 
Term,  1805,  a,  pluries  fieri  facias  was  issued,  and  levied  on  three 
hundred  acres  of  land  in  Bald  Eagle,  belonging  to  the  defend- 
ants. This  land  was  afterwards  sold  by  the  sheriff'  on  another 
judgment ;  but  before  the  money  was  appropriated  to  the  cred- 
itors of  the  defendants,  the  latter  moved  the  court,  that  the 
judgment  of  George  Pennock's  executor,  of  the  5th  of  December, 
1798,  above  mentioned,  be  opened,  so  far  as  to  let  them  plead 
and  try  what  sum,  if  any,  was  due  to  the  plaintiff  in  that  judg- 
ment. On  the  3d  of  September,  1825,  the  court  granted  this 
motion.  The  defendants  pleaded  payment  with  leave,  &c.  Re- 
r*491 1  plication,  *non  solverunt,  issue  and  rule  for  trial.  The 
L  -•  trial  came  on  in  December,  1825,  and  a  verdict  was 
found  for  the  plaintiff  for  two  hundred  dollars  and  ninety-one 
cents,  upon  which  judgment  was  rendered  by  the  court.  On 
this  trial,  the  plaintiff  proceeded  to  give  in  evidence  his  judg- 
ment of  the  5th  of  December,  1798,  and  the  two  first  writs  of 
fieri  facias,  above  mentioned,  with  the  sheriff's  returns  thereon, 
and  rested. 

The  defendants  then  offered  in  evidence  a  judgment  of  John- 
son against  Griffith  Carr  and  George  Carr,  September  Term, 
1798,  for  one  hundred  and  nine  pounds  nineteen  shillings  and 
four-pence,  together  with  a  fieH  facias  issued  thereon,  returnable 
to  December  Term,  1799,  and  returned  "levied  on  grain  in  the 
stack  subject  to  former  levies  ;" — an  alias  Jiein  facias  to  Decem- 
ber Term,  1800,  returned,  "  levied  on  three  stacks  of  wheat, 
and  one  yoke  of  oxen ;  the  oxen  subject  to  former  levies  ;" — a 
venditioni  exponas  to  February  Term,  1801,  returned,  "sold  to 
the  amount  of  sixty-six  dollars,"  returned  February,  1806; — an 
472 


jM7i€l6,1829.]      OF   PENNSYLVANIA.  421 

[Williams,  Executor  of  Pennock,  v.  Carr  and  another.] 

alias  venditioni  exponas  to  May  Term,  1801,  returned,  "sold, 
and  proceeds  appropriated  to  prior  levies ;" — a  fieri  facias  to 
February  Term,  1805,  pro  residuo,  returned,  "  levied  on  tAvo 
horses;" — a  venditioni  exponas  to  April  Term,  1805,  to  which 
there  was  no  return ; — an  alias  venditioni  exponas  to  December 
Term,  1805,  returned,  "sold  to  the  amount  of  forty-seven  dol- 
lars;"— a  capias  ad  saiisfaciendum  to  February  Term,  1806, 
returned,  "C.  C. ;" — and  also,  the  following  receipts,  admitted 
to  be  in  the  haudAvriting  of  J.  Cummings,  sheriif,  viz. :  Receipt, 
21st  of  January,  1801,  of  John  Cummings,  sheriff,  for  sixty-nine 
dollars,  for  three  horses  to  William  Martin,  purchased  by  him 
as  the  property  of  G.  and  G.  Carr. — Receipt  of  the  23d  of 
June,  1801  ;  same  to  John  Fleming,  Esq.,  for  one  hundred  and 
thirty-one  dollars,  in  full  of  the  purchase  of  a  mare,  sold  as  the 
property  of  the  same. — Receipt  of  the  same  date ;  same  to  Jesse 
Hunt  for  twenty-five  dollars,  in  part  of  two  horses,  property  of 
the  same. — Receipt  of  the  2d  of  February,  1801,  same  to  same, 
for  fifty-three  dollars  and  fifty  cents,  in  full  for  his  purchase  of 
Carr's  property. — Receipt  of  the  7th  of  May,  1801  ;  same  to 
M'La'ughlin  for  sixty-six  dollars  for  property  of  Carr's,  at 
sheriff's  sale;  and  also,  a  receipt  of  the  8th  of  May,  1800,  in 
the  receipt  book  C.  of  J.  Cummings,  of  Charles  Hall,  for  three 
pounds,  being  the  amount  of  attorney's  fees  in  this  case. 

The  above  were  offered  by  the  defendants,  in  order  to  show, 
that  while  the  aforesaid  jieri  facias  of  George  Pennock  against 
Griffith  Carr  and  George  Carr,  to  the  February  Term,  1800, 
lay  in  the  hands  of  the  sheriff,  and  when  there  was  no  other 
fieri  facias  in  his  hands,  several  executions  were  put  into  the 
•  sheriff's  hands,  on  which  levies  were  made,  subject  to  former 
levies ;  that  the  property  on  writs  of  venditioni  exponas  in  the 
several  cases,  was  sold  and  returned  as  applied  to  prior  levies ; 
that  there  was  no  prior  levy,  *unless  one  had  been  made  r*  <  .99-1 
on  Pennock's  fieri  facias  of  February,  1800;  and,  •-  -• 
further,  on  the  return  of  "sold,  and  proceeds  appropriated  to 
prior  levies,"  made  on  No.  9,  of  February,  1801,  and  No.  27,  of 
May  Term,  1801,  to  prove  by  the  said  receipts  of  sheriff  Cum- 
mings to  persons  who  purchased  at  said  sales,  that  the  property 
sold  amounted  to  above  three  hundred  and  forty  dollars ;  and 
further  to  show,  by  the  receipt  of  Charles  Hall,  Esq.,  above 
stated,  the  payment  of  his  fees  in  this  case. 

To  this  evidence  the  plaintiff  objected,  but  the  court  admitted 
it,  and  sealed  a  bill  of  exceptions.  Other  evidence  was  after- 
wards given  by  the  defendants ;  a  second  bill  of  exceptions 
was  sealed,  and  various  errors  have  been  assigned  as  existing  in 
the  charge  of  the  President ;  but,  in  the  discussion  before  this 
court,  two  errors  only  have  been  insisted  on.     Of  these,  the 

473 


422  SUPREME  COURT  [Sunhury, 

[Williams,  Executor  of  Pennock,  v.  Carr  and  another.] 

first  was  the  admission  of  the  evidence  contained  in  the  fore- 
going offer. 

1.  The  ancient  mode  of  relief  against  unjust  and  oppressive 
proceedings  upon  a  legal  and  regular  judgment,  was  by  the  writ 
of  audita  querela,  which  seems  (says  Blackstone,  3  Com.  406), 
to  have  been  invented,  lest  in^  any  case  there  should  be  a  defect 
of  justice,  where  a  party  who  has  a  good  defence,  is  too  late  to 
make  it  in  the  ordinary  forms  of  law.     It  lay  wherever  a  de- 
fendant liad  paid  the  debt  to  the  plaintiff  without  procuring 
satisfaction  to  be  entered  on  the  record,  or  has  matter  of  fact  or 
in  writing,  to  avoid  the  execution,  and  no  other  means  to  take 
advantage  of  it.     1  Com.  Dig.  And.  Quer.  A.  647.     In  such 
cases,  the  defendant  was  aided  by  this  writ,  which,  in  the  nature 
of  a  bill  in  equity,  lay  upon  good  matter  of  discharge  occurring 
since  the  judgment,  to  relieve  him  against  the  oppression  of  the 
plaintiff.     The  modern  practice  of  granting  relief  upon  motion, 
has  been  found  to  be  more  convenient,  and  has  accordingly 
superseded  the  writ  of  audita  querela;   being   adopted  in  all 
cases,  where  the  defendant  would  have  been  entitled  to  relief 
upon  that  writ.     We  consider  the  present  case  as  presenting  a 
proper  occasion  for  the  interposition  of  the  court  below ;  and 
the  direction  of  that  court,  in  referring  the  question  of  what,  if 
anything  was  due,  to  the  decision  of  a  jury,  as  entirely  unex- 
ceptionable.    This  offer  of  the  defendant's  was  admissible  for 
the  purposes  stated.     However  conclusive  the  sheriff's  return 
may  be  in  an  action  against  him,  or  in  an  action  between  third 
persons,  where  the   return  is  regular,  (and  we   are  far  from 
thinking,  that  the  authority  of  this  official  act  should  in  those 
instances  be  diminished,)  it  would  be  attached  with  great  op- 
pression, to  give  the  same  weight  to  the  loose  and  irregular  re- 
turns which  are  often  made  by  that  officer.     The  intention  of 
the  law  is,  that  the  writ  of  execution  should  be  returned  to  the 
next  term — such  is  the  exigence  of  the  writ  itself,  and  the  sheriff 
ought  not  to  neglect  it.     But  the  practice  is,  in  most  counties, 
exceedingly  lax  in  this  respect.     In  many  cases,  the  writ  is  not 
returned  at  all ;  in  others,  not  until  the  lapse  of  years  after  its 
exit,  when  the  sheriff,  considering  the  matter  as  settled,  or  for- 
r*49*^T  g^tt^o^g  t^6   real   transaction,   *indorses   a   return  pro 
L         J  foi-ma.     In  the  case  before  us,  the  alias  fieri  facias, 
No.  14,  to  February  Term,  1800,  was  retained  in  the  sheriff's 
hands  for  six  years,  and  then  returned  nulla  bona.     Upon  the 
strength  of  such  a  return,  the  court  were  asked  to  exclude  the 
evidence  offered  by  the  defendants,  going  to  show,  that  whilst 
that  writ  remained  in  the  sheriff's  hands,  he  sold  their  property 
and  applied  the  proceeds  towards  the  payment  of  the  plaintiff's 
judgment.     In  Weidman  v.  Weitzel,  13  Serg.  &  Rawle,  96,  this 
474 


June  15,1829.]       OF  PEJs^NSYLYANIA.  423 

[Williams,  Executor  of  Pennock,  v.  Caxr  and  another.] 

court  determined,  that  a  sheriif' s  return  to  a  fieri  facias,  made 
two  years  after  the  proper  time,  and  one  year  after  a  suit 
brought,  in  which  its  effect  was  material,  was  unworthy  the 
name  of  a  regular  legal  return,  by  which  the  party  should  be 
concluded. 

We  think  the  decision  of  the  Court  of  Common  Pleas  upon 
this  offer  was  correct,  and,  therefore,  the  first  assignment  of  error 
is  not  sustained. 

2.  Among  the  points  presented  to  the  court,  to  which  their 
answers  were  requested,  was  the  following  : — 

"  4th  point. — Whether  the  indirect  evidence  given  by  the  de- 
fendants, of  proceedings  in  other  judgments,  afforded  any  legal 
presumption,  that  any  of  the  debt  or  damages  had  been  paid  to 
the  plaintiff,  in  opposition  to  the  direct  and  positive  evidence  of 
the  judgment  and  proceedings  in  this  case  ?" 

To  which,  the  court  gave  in  charge  to  the  jury  the  following 
answer : — 

"  4th  answer. — It  is  evidence  of  the  property  of  Carr's  being 
sold,  which  might  be  appropriated  towards  Pennock's  execution  ; 
it  being  prior  to  the  execution  of  the  Johnsons,  does  form  a 
strong  presumption  of  payment,  and  sheriff  Cummings,  who 
held  these  executions,  states  in  his  evidence,  that  it  is  his  im- 
pression that  he  paid  money  to  the  attorney  of  Pennock  on 
account  of  that  judgment,  but  that  he  is  not  certain." 

This  answer  constitutes  the  other  error  on  which  the  plaintiff 
insists  that  the  judgment  should  be  reversed. 

The  court  having  properly  admitted  the  evidence,  had  passed 
it  to  the  jury,  that  they  might  ascertain  its  force ;  it  was  pecu- 
liarly the  province  of  the  latter,  to  determine  the  question  sub- 
mitted in  this  fourth  point ;  provided,  the  words  "  any  legal 
presumption"  be  taken  in  that  sense,  in  which  alone  it  was 
proper  to  use  them,  after  the  admission  of  the  evidence  referred 
to,  (that  is  to  say,  in  the  sense  of  "any  presumption,  or  proof;" 
and  in  which  the  court  appear  to  have  understood  them.  The 
Court  may,  with  propriety,  give  their  opinion  to  the  jiiry  upon 
a  question  of  fact ;  nor  will  this  court  reverse  for  error  in  such 
opinion,  unless  it  clearly  appear  that  the  jury  were  thereby  pre- 
cluded from  deciding  for  themselves.  Riddle  v.  Murphy,  7  Serg. 
&  Rawle,  230.  The  same  remark  is  applicable  to  the  opinion  of 
the  court  on  the  weight  of  testimony.  But  the  plaintiff  having 
requested  their  opinion,  *cannot  complain  that  the  court  r^^oAi 
proceeded  to  give  it ;  and,  from  an  examination  of  the  •-  -' 
^  evidence,  as  it  appears  in  this  record,  we  can  discern  nothing 
wrong  or  erroneous  in  their  estimate  of  its  value  in  their  answer, 
which  they  submitted  to  the  jury  in  reply  to  his  proposition. 
We  are,  therefore,  of  opinion,  that  the  plaintiff  has  also  failed 

475 


424  SUPREME  COURT  [Sunbury, 

[Williams,  Executor  of  Pennock,  v.  Carr  and  another.] 

to  sustain  this  assignment  of  error,  and  that  the  judgment  should 
be  affirmed. 

Judgment  affirmed. 

ated  by  Counsel,  2  M.  391 ;  9  N.  92 ;  s.  c.  7  W.  N.  C.  277. 
Cited  by  the  Court,  6  W.  65 ;  2  J.  301 ;  8  S.  208. 


[SuNBURY,  June  15, 1829.] 

M'Clay  against  Benedict. 

APPEAL. 

The  admission  of  a  party  claiming  right  to  defend  in  ejectment  as  landlord, 
under  the  ninth  section  of  the  act  of  the  21st  of  March,  1772,  is  an  act  of  the 
court,  whose  duty  it  is  to  inquire  before  making  the  order,  whether  the  appli- 
cant really  stands  in  the  relation  of  landlord,  or  whether  his  claim  of  title  is 
consistent  with  the  possession  of  the  occupier. 

On  an  appeal  from  the  Circuit  Court  of  Mifflin  county,  it  ap- 
peared that  this  was  an  amicable  ejectment  for  a  lot  of  ground 
in  Levvistown,  (entered  originally  in  the  Court  of  Common  Pleas 
of  Miffiin  county,  and  on  the  same  day  certified  into  the  Circuit 
Court,)  by  Samuel  M'Clay  against  E.  L.  Benedict. 

The  following  is  an  extract  from  the  record  of  the  Circuit 
Court  :-^"  And  now,  31st  December,  1828,  Hale  appears  for 
D.  H.  Hulings,  the  landlord,  and  pleads  not  guilty,  and  enters 
a  rule  of  arbitration.  Due  notice  to  the  plaintiff.  D.  H.  Hu- 
lings, landlord  and  party  in  interest,  appears  according  to  law, 
on  the  16th  of  January,  1829.  Plaintiff  not  appearing,  and 
clerk  of  the  Circuit  Court  acts^  in  place  of  absent  party,  when 
D.  Stuart,  Henry  Kulp,  and  Samuel  Smith,  are  chosen  arbitra- 
tors; and  clerk  fixes  the  10th  of  February,  1829,  to  meet  at 
Mrs.  Elliott's.  11th  of  February,  1829,  the  plaintiff,  Samuel 
M'Clay,  comes  and  discontinues  this  suit.  Witness  his  hand 
and  seal. 

"Samuel  M'Clay." 

"And  now,  to  wit:  13th  of  February,  1829,  report  of 
arbitrators  is  filed  awarding  in  favour  of  the  defendant,  and 
that  the  plaintiff  has  no  cause  of  action.  And  now,  at  a 
Circuit  Court,  the  18th  of  April,  1829,  on  motion  of  Hall, 
for  the  plaintiff,  to  set  aside  the  report  of  the  arbitrators ; 
after  argument,  award  of  arbitrators  and  proceedings  set  aside. 
Whereupon  D.  H.  Hulings,  the  landlord  of  E.  L.  Benedict,  the 
476 


Jwm  15, 1829.]      OF  PENNSYLVANIA.  424 

[M'Clay  V.  Benedict.] 

defendant  in  this  case,  appeals  from  the  judgment  of  the  Circuit 
Court  in  setting  aside  the  award  of  arbitrators,  and  setting  aside 
the  proceedings." 

Hale,  for  the  appellant. 
Hall,  contra. 

*The  opinion  of  the  court  was  delivered  by  V*A9^'\ 

Rogers,  J. — The  ninth  section  of  the  act  of  the  21st  L  J 
of  March,  1772,  prescribes,  that  it  shall,  and  may  be  lawful  for 
the  court,  where  an  ejectment  may  be  brought,  to  suffer  the  land- 
lord to  make  himself  a  defendant,  by  joining  with  the  tenant,  to 
whom  a  declaration  in  ejectment  has  been  delivered.  The  ad- 
mission of  a  party  claiming  right  to  defend,  is  clearly  an  act  of 
the  court,  whose  duty  it  is  to  inquire,  before  making  the  order, 
whether  the  applicant  stands  in  relation  of  landlord,  or  whether 
his  claim  of  title  is  consistent  with  the  possession  of  the  occu- 
pier. It  is  not  every  person  who  claims  to  be  landlord  that  is 
really  such,  nor  is  it  every  claim  of  title  which  gives  right  to 
defend  the  suit.  In  England,  under  the  statute  11  Geo.  2,  ch. 
19,  s.  13,  it  was  at  first  holden,  that  it  was  not  every  person 
claiming  title,  who  could  be  admitted  to  defend  as  landlord,  but 
only  he  who  had  been  in  some  degree  in  possession,  as  receiving 
rent,  &c.  But  this  doctrine  was  afterwards  reprobated  by  Lord 
Mansfield,  Burr.  Rep.  1290,  and  the  word  landlord,  in  the  act, 
was  considered  to  extend  to  every  person  whose  title  was  con- 
nected to,  and  consistent  with  the  possession  of  the  occupier, 
and  divested  or  disturbed  by  any  claim  adverse  to  such  posses- 
sion, as  in  the  case  of  remainders,  or  reversions,  expectant  upon 
particular  estates.  So  careful  have  the  courts  been  to  preserve 
the  rights  of  the  original  parties,  that  if  a  person  should  be  ad- 
mitted to  defend  as  landlord,  where  title  is  inconsistent  with  the 
possession  of  the  tenant,  the  lessor  of  the  plaintiff  may  apply  to 
the  court,  or  to  a  judge  at  his  chambers,  and  have  the  rule  dis- 
charged with  costs.  If,  however,  he  neglect  to  do  so,  and  the 
party  continue  on  the  record  as  defendant,  such  party  will  not 
be  allowed  to  set  up  such  inconsistent  title  as  a  defence  at  the 
trial.  Adams  on  Eject.  232.  Under  the  construction  of  the 
statute  11  Geo.  2,  which  is  similar  to  our  act,  it  is  not  a  matter 
of  course,  that  a  person  should  be  made  co-defendant.  In  prac- 
tice, on  application  to  the  court,  it  is  frequently  refused.  For 
where  a  person  claims  in  opposition  to  the  title  to  the  defendant, 
he  can  in  no  light  be  considered  as  landlord,  and  it  would  be 
unjust  to  the  tenant,  that  he  should  be  made  co-defendant,  as 
their  defences  might  interfere  with  each  other.  So  also,  the 
very  question  in  dispute,  between  the  parties  may  be,  whether 

477 


426  SUPREME  COURT  [Sunbury, 

[M'CIay  V.  Benedict.] 

the  person  claiming  to  be  made  a  co-defendant  is  entitled  to  be 
landlord  or  not.  Adams  on  Eject.  230,  in  note.  Hence  it  is, 
that  the  act  has  very  wisely  given  the  court  a  control  over  this 
matter ;  as  otherwise,  a  stranger  to  the  record  might  obtain  an 
advantage  over  tile  parties  to  the  suit.  There  is  a  great  differ- 
ence between  being  plaintiff  and  defendant  in  ejectment ;  and  if 
a  person  could,  without  leave  of  the  court,  make  himself  a  co- 
defendant,  it  would  enable  him  at  his  own  will,  to  place  himself 
in  the  situation  of  the  defendant  in  the  ejectment,  and  by  this 
means,  make  good  a  title,  which  he  would  be  unable  to  support 
r*49fi1  ^  plaintiff.  It  might  prove  equally  vexatious  to  the  *de- 
«-  -J  fendant,  who  would  sometimes  be  surprised  with  a  land- 
lord, whose  title  he  disclaimed,  placed  on  the  record  by  collu- 
sion with  the  plaintiff,  or  whose  claim  being  inconsistent  with 
his  own,  might  embarrass  his  defence.  It  has  been  argued,  that 
inconvenience  may  be  experienced  from  the  fact,  that  the  Cir- 
cuit Court  does  not  sit  in  the  respective  counties  but  once  a 
year,  and  that  this  may  create  delay,  or  give  an  opportunity 
for  collusion  between  the  plaintiff  and  tenant.  This  is  an  in- 
convenience inseparable  from  the  organization  of  the  court ;  but 
in  all  cases  of  fraud,  the  court  would  relieve  on  motion,  by 
reinstating  the  parties  in  their  original  rights.  And  in  a  spe- 
cial case,  application  might  be  made  to  the  Supreme  Court,  in 
bank,  or  to  one  of  the  justices  in  vacation,  who  upon  reasonable 
notice  to  the  adverse  party,  would  take  such  order  as  to  pre- 
vent delay  or  any  undue  advantage.  The  only  evidence  we 
have  that  Mr.  Huling  is  the  landlord,  is  the  entry  on  the 
record.  "Hale  appears  for  D.  H.  Huling,  the  landlord,  and 
pleads  not  guilty,  and  enters  a  rule  of  arbitration."  There 
is  no  adjudication  of  the  court,  by  which  he  is  made  a  co-defend- 
ant, and  we  are  to  consider  him  in  no  other  light  than  as  a 
stranger  to  the  record.  His  entering  a  rule  of  reference  was  an 
unwarrantable  interference  with  a  suit  to  which  he  was  no  party. 
It  is  the  opinion  of  the  court,  that  the  judgment  of  the  Circuit 
Court  be  affirmed. 

Judgment  affirmed. 

Cited  by  Court,  2  N.  181 ;  12  N.  467 ;  s.  c.  8  W.  N.  C.  494. 


478 


jMm  25, 1829.]      OF  PENNSYLVANIA.  426 


[SuNBTJBY,  June  25, 1829.] 

Gonsalus  against  Liggitt. 

IN   ERROR. 

Where  the  plaintiff,  suing  before  a  magistrate,  has  a  judgment  given  against 
him,  from  which  he  appeals,  and  the  cause  being  then  arbitrated,  an  award 
is  given  in  favour  of  the  plaintiff,  from  which  the  defendant  appeals,  and  on 
the  trial  in  court,  a  verdict  is  given  in  favour  of  the  defendant :  the  defendant 
is  entitled  to  the  costs  of  the  arbitration,  and  also,  to  the  subsequent  costs  in 
court. 

Error  to  the  Court  of  Common  Pleas  of  Centre  county. 

Richard  Gonsalus,  the  plaintiff  in  error,  sued  Abraham  Lig- 
gitt before  a  justice  of  the  peace,  who  gave  judgment  in  favour 
of  the  defendant  for  seventeen  cents,  Avhereupon  the  plaintiif  ap- 
pealed. In  the  Court  of  Common  Pleas  the  plaintiff  entered  a 
rule  of  reference,  and  the  arbitrators  awarded  ninety-two  cents 
in  favour  of  the  plaintiff;  the  defendant  then  appealed,  and  on 
a  trial  there  was  a  verdict  in  favour  of  the  defendant. 

The  court  decided,  that  the  defendant  was  entitled  to  recover 
from  the  plaintiff  the  costs  of  the  arbitration,  and  also  the  costs 
*  which  subsequently  accrued  in  court,  and  that  the  r^^ny-i 
plaintiff  was  entitled  to  the  costs  before  the  justice,  •-  ^ 
and  it  he  had  paid  them,  the  amount  must  be  deducted  from  the 
defendant's  bill. 

The  only  question  raised  in  the  Supreme  Court,  was  that  of 
the  costs,  which  was  argued  by  Potter ^  for  the  plaintiff  in  error, 
and  Blanchard,  contra. 

Per  Curiam. — This  case  is  not  distinguishable  from  Flick  v. 
Boucher,  16  Serg.  &  Rawle,  373,  where  the  defendant  having 
been  the  appellant  at  every  stage,  succeeded  finally  in  abating 
the  judgment  of  the  justice  by  obtaining  a  nonsuit.  Here  he 
did  so  by  a  verdict  and  judgment  on  the  merits ;  and  that  is 
the  only  difference.  The  judgment,  so  far  as  it  allows  the 
plaintiff  the  costs  before  the  justice,  is  erroneous ;  but  as  this 
writ  of  error  is  brought  by  the  plaintiff,  the  defendant  can  have 
no  advantage  from  it. 

Judgment  affirmed. 

Cited  by  Counsel,  1  Penn.  E.  488 ;  1  W.  53 ;  2  E.  441 ;  6  Barr,  464, 


479 


427  SUPREME  COURT  ISunbmi/, 


[SuNBUBY,  JxmE  25, 1829.] 
Crawford  against  Jackson. 


Where  there  is  a  demurrer  to  parol  evidence,  of  a  fact,  which  is  not  evi- 
dence of  any  other  fact,  but  itself  a  substantive  ingredient  of  the  case,  a  party 
may  be  required  to  join  in  demurrer. 

On  a  demurrer  to  parol  evidence,  if  the  plaintiff  refuses  to  join  in  demurrer, 
except  on  terms  which  the  court  disai)proves,  the  plaintiff's  evidence  must 
be  considered  as  withdrawn,  and  the  jury  must  find  a  verdict  for  the  de- 
fendant. 

Appeal  from  the  Circuit  Court,  sitting  in  Huntingdon 
county. 

John  Crawford,  brought  an  action  of  indebitatus  assumpsit 
in  the  Common  Pleas  of  Huntingdon  county,  against  William 
Jackson,  which  was  removed  into  the  Circuit  Court,  and  tried 
before  His  Honour  Judge  Smith,  on  the  22d  of  August,  1828. 

The  following  evidence  was  given  by  the  plaintift'. 

John  M'Cahan,  sworn. — On  the  13th  of  April,  1819,  John 
Crawford  called  at  my  house ;  told  me  he  was  likely  to  get  into 
a  dispute  with  Mr.  Beatty  about  whiskey  he  had  sold  to  Beatty  ; 
said  he  was  afraid  he  would  have  to  sue  him  ;  said  he  was  an 
old  acquaintance;  did  not  like  to  sue  him.  I  told  him  I  would 
try  and  get  the  matter  accommodated ;  I  directed  him  to  come 
back  the  next  day ;  I  would  send  for  Beatty,  who  lived  four 
miles  out  of  town ;  I  sent  for  Beatty,  they  both  met  the  next 
day  at  my  house ;  I  took  up  their  accounts,  heard  each  of  their 
stories,  and  struck  a  balance  which  they  both  appeared  to  be 
r*4.9«1  satisfied  with ;  there  was  something  said  *about  the 
L  -•  payment.  I  took  Crawford  to  the  end  of  the  house ;  I 
advised  him,  if  he  did  not  stand  in  need  of  the  money,  as  I 
knew  the  money  was  to  come  from  Jackson  to  Beatty,  to  take 
an  assignment  of  a  judgment,  that  Jackson  held  against  Ger- 
sham  Lambert.  I  had  been  an  arbitrator  and  knew  the  cir- 
cumstances of  the  judgment;  Crawford  replied,  he  did  not 
stand  in  need  of  the  money,  and  we  returned  into  the  house. 
I  mentioned  the  arrangement  to  Mr.  Beatty,  that  I  had  pro- 
posed to  Crawford ;  he  was  satisfied  with  it,  and  we  all  went 
to  Jackson's  house  together ;  before  I  left  the  house,  I  put  two 
bonds  in  my  pocket,  (Beatty's  papers  were  all  in  my  possession,) 
due  by  Jackson  to  Beatty ;  the  arrangement  was  mentioned  to 
Jackson ;  we  all  went  together  to  the  prothonotary's  office ; 
Jackson,  when  there,  asked  for  his  bonds ;  I  took  one  out,  on 
480 


June  25, 1829.]        OF  PENNSYLVANIA.  428 

[Crawford  v.  Jackson.] 

which  lie  had  made  a  partial  payment,  and  made  a  calculation 
of  the  balance  due ;  gave  that  one  up  to  him,  and  indorsed  a 
credit  on  the  other,  for  the  balance  of  Crawford's  account;  then 
this  indorsement  was  put  on  the  record,  and  signed  hy  Mr. 
Jackson  : 

William  Jackson,  ^  No.  22,  April,  1818. 

V.  >      Summons  debt  by  bond — 

Gersham  Lambert,  j      Rule  of  reference. 

Report  filed  the  15th  of  August,  1818  ;  find  for  the  plaintiff, 
four  hundred  and  sixty-four  dollars  and  seventy-six  cents,  in- 
terest from  the  5th  of  August,  1818  ;  plaintiff  agrees  to  a  stay 
of  execution  until  the  1st  of  April,  1819;  judgment,  plaintiff 
to  pay  all  costs. 
Assignment. 

This  judgment  for  the  use  of  John  Crawford,  14tli  of  April, 
1819. 

Test,  William  Steel. 

Signed        William  Jackson. 

The  assignment  is  in  Steel's  handwriting.  We  then  dis- 
persed, and  I  heard  no  more  of  the  matter  for  several  months. 
INIr.  Crawford  came  into  my  office,  and  said  that  he  had  just 
heard  that  Lambert  had  assigned  all  his  property  to  his  children 
before  this  judgment,  and  was  not  worth  anything.  I  told  him 
I  was  a  good  deal  surprised  at  it.  In  the  evening  I  went  down 
to  Mr.  Jackson's,  took  him  into  a  front  room,  and  told  him  what 
Crawford  had  mentioned  to  me ;  he  appeared  to  be  surprised  at 
the  information  too.  I  stated  my  opinion,  that  he  was  liable 
for  the  money  to  Crawford,  and  that  he  ought  to  adopt  imme- 
diate measures  to  secure  himself.  Lambert  lived  about  five 
miles  below  this  place,  and  I  advised  him  to  go  to  him,  and  try 
to  get  possession  of  some  bonds  he  had  on  people  in  Jersey. 
Jackson  said  he  would  have  to  pay  that  money,  it  would  be  an 
injury  to  him,  as  he  had  intended  to  pay  Beatty  in  the  s])ring, 
and  he  would  not  be  able  to  do  so.  I  advised  him  to  take  legal 
advice  on  the  subject ;  and  told  him  if  he  *would  come  r* ^901 
up  on  Monday  morning,  we  would  examine  the  deeds.  I  L  "^  -' 
saw  him  on  Monday ;  he  had  seen  Mr.  Smith  in  the  meantime, 
and  he  then  thought  differently  on  the  subject ;  my  application 
to  Crawford,  was  on  Jackson's  account ;  it  was  a  voluntary  act 
of  my  own,  and  not  of  Mr.  Crawford's  seeking ;  I  do  not 
recollect  what  conversation  took  place  at  the  time  of  the 
assignment ;  they  were  all  my  friends,  and  I  wanted  to  have 
the   matter   settled    all    round    without   a    law    suit ;    Jackson 

VOL.  I.— 31  481 


429  SUPREME  COURT  [Sunbury, 

[Crawford  v.  Jackson.] 

demanded  his  bonds  before  he  signed  the  assignment;  Mr. 
Beatty,  Mr.  Crawford,  Jackson,  and  myself,  were  all  there  at 
the  time  of  the  assignment ;  I  was  under  the  impression  that 
he  was  liable,  and  he  appeared  to  be  so  too ;  but,  whether  from 
my  conversation  or  not,  I  do  not  know. 

William  R.  Smith,  Esq.,  sw^orn. — I  issued  this  jsrcec/pe,  (prcB- 
dpe,  for  fieri  facias,  No.  83,  January  7th,  1820,  William  Jack- 
son V.  Gersham  Lambert,  shown  witness.)  I  was  the  attorney 
in  the  original  suit ;  I  never  was  the  attorney  of  Mr.  Craw- 
ford, and  received  no  directions  from  Mr.  Crawford ;  I  have  no 
distinct  recollection  of  the  directions  given  by  Mr.  Jackson  to 
me ;  the  scire  facias  was  not  issued  by  me. 

Patrick  Guin,  sworn. — Gersham  Lambert  owed  me  a  pretty 
large  sum  of  money,  and  if  I  had  not  had  his  son  bound  for  it, 
I  would  have  got  nothing.  I  did  not  know  at  the  time  I  lent 
him  the  money,  that  he  had  conveyed  away  his  property.  At 
the  time  of  my  judgment,  he  was  not  Avorth  anything.  In 
1819,  he  had  conveyed  away  his  property;  I  issued  a  small 
execution  against  his  personal  property,  but  the  bank  had 
issued  on  the  same  day ;  I  having  the  son,  got  a  part  of  my 
money. 

Gersham  and  David  Lambert  are  both  dead ;  I  believe  both 
were  insolvent. 

The  plaintiff  also  gave  in  evidence  several  deeds  and  records, 
which  are  not  now  material,  and  rested.  Whereupon  the 
defendant,  by  his  counsel,  demurred  to  the  evidence.  The 
plaintiff's  counsel  then  asked  the  court  to  require  the  defend- 
ant's counsel  to  admit  upon  record,  the  inference,  stated  in 
the  paper  filed,  marked  A,  previous  to  their  joining  in  demurrer, 
which  paper  is  in  the  following  words : 

John  Crawford    ^ 

V.  y  In  the  Circuit  Court  of  Huntingdon  county. 

William  Jackson,  j 

In  this  case  the  defendant's  counsel,  having  demurred  to  the 
evidence  of  the  plaintiff,  the  plaintiff's  counsel  ask  the  court  to 
require  the  defendant's  counsel  to  admit  upon  record,  previous 
to  their  joining  in  the  demurrer,  the  inference  which  may  be 
drawn  by  the  jury,  from  the  circumstance  of  Beatty,  Jackson, 
and  Crawford  being  all  present  when  the  assignment  given  in 
evidence  was  made;  from  the  nature  of  the  transaction  itself; 
from  William  Jackson's  (the  defendant's)  conduct,  (as  proved  by 
r*4'^m  ^^^^  McCahan)  at  the  *time  he  called  upon  him,  to 
•-  -I  request  him  to  take  some  steps  to  secure  himself  against 
Lambert's  insolvency ;  and  from  the  circumstance  of  Mr.  Jaek- 
482    ' 


June  25  1829.]      OF   PENXSYLVAXIA.  430 

[Crawford  v.  Jackson.] 

son's  attorney,  William  R.  Smith,  issuing  tlie  execution  on  the 
assigned  judgment,  and  having  no  direction  or  authority  from 
Mr.  Crawford  to  do  so ;  that  it  was  the  understanding,  and 
agreement  of  Crawford  and  Jackson,  at  the  time  of  the  assign- 
ment of  the  judgment  against  Lambert,  that  Jackson  was  to  be 
liable  to  Crawford,  if  the  judgment  proved  ineffectual,  to  collect 
the  mouey  from  ;  and  if  the  defendant's  counsel  refuse  to  admit 
this  inference,  and  if  the  court  refuse  to  compel  them  to  admit 
it,  the  plaintiff's  counsel  refuse  to  join  in  demurrer. 

J.  Geo.  Milf^s,  and  Joiix  Blanchard, 
Attorneys  for  the  plaintiff. 
23d  of  August,  1828. 

After  this  paper  had  been  filed  by  the  plaintiff's  counsel,  the 
court  refused  to  require  the  defendant  to  admit  on  record  the 
inference  therein  stated ;  and  the  plaintiff's  counsel  refused  to 
join  in  demurrer ;  whereupon  the  court  instructed  the  jury, 
that  the  plaintitf,  by  refusing  to  join  in  demurrer,  had  with- 
drawn the  evidence,  and,  that  there  was  therefore  no  evidence 
before  the  court  and  jury. 

After  the  jury  had  given  a  verdict  for  the  defendant,  the 
plaintiff's  counsel  moved  the  court  for  a  new  trial,  for  the  fol- 
lowing reasons : 

1.  Because  the  court  erroneously  withdrew  the  evidence, 
which  was  given  in  the  cause,  from  the  jury,  and  instructed 
them  that  there  was  no  evidence  before  them  on  which  they 
could  decide. 

2.  Because  the  court  erroneously  compelled  the  plaintiff  to 
submit  to  having  the  evidence  withdrawn  from  the  jury,  or  to 
join  in  the  demurrer  of  the  defendant,  notwithstanding  the 
plaintiff's  counsel  asked  the  court  to  require  the  defendant's 
counsel  to  admit  the  inference  drawn,  from  the  circumstances 
stated  in  the  paper  filed,  marked  A,  (as  per  paper  filed,)  pre- 
vious to  their  joining  in  the  said  demurrer. 

3.  Because  the  court  refused  to  require  the  defendant's  couii- 
sel  to  admit  the  inference,  which  the  plaintiff's  counsel  asko<l 
the  court,  (as  per  paper  filed,  marked  A,)  to  require  them  to 
admit  from  the  circumstantial  evidence  stated  in  that  paj)tr, 
previous  to  the  plaintiff's  joining  in  the  demurrer  of  the 
defendant  to  the  evidence,  and  because  the  court  withdrew  the 
cause  from  the  jury,  on  the  ])laintiff's  counsel  refusing  to  joiii 
in  the  said  demurrer,  for  the  reasons  stated  in  the  said  paper 
filed,  marked  A. 

4.  Because  the  verdict  is  against  law,  and  the  justice  of  the 
cause. 

483 


430  -  SUPRE^IE  COURT  [Sunbv/ry, 

[Crawford  v.  Jackson.] 

The  motion  for  a  new  trial  was  overruled,  from  which  decision 
the  plaintiff  appealed. 

The  argument  was  conducted  by  Miles  and  Blanchard,  for 
the  appellant,  who  contended,  that  the  court  ought  to  have 
discharged  the  jury,  and  compelled  the  plaintiif  to  join  in 
demurrer,  and  cited,  1  Tid.  Pr.  315;  Duerhagen  v.  The  United 
r*4'^n  States  Insurance  *Company,  2  Serg.  &  Rawle,  185; 
L  J  Dickey  v.  Schreider,  3  Serg.  &  Rawle,  413 ;  Lessee  of 
Maus  V.  Montgomery,  11  Serg.  &  Rawle,  329;  7  Cranch,  565; 
Bull.  N.  P.  313;  2  Roll's.  Rep.  117;  Alleyn,  18;  Cro.  Eliz. 
682 ;  Patrick  v.  Hallett,  1  Johns.  Rep.  245 ;  Lessee  of  Ross 
V.  Eason,  4  Yeates,  54  ;  Snowden  v.  The  Phoenix  Insurance 
Company,  3  Binn.  457 ;  Peake's  Ev.  4,  (second  edit.) 

Potter,  Goydra,  answered,  that  the  court  possessed  no  power 
to  compel  a  joinder  in  demurrer ;  and,  could  have  adopted  no 
other  course  tlian  that  taken.  He  cited  Jackson  v.  Crawford,  1 2 
Serg.  &  Rawle,  165;  s.  c.  14  Serg.  &  Rawle,  290;  4  Cranch, 
221;  1  Wash.  151,  220;  2  AVash.  211  ;  1  Bibb.  612. 

The  opinion  of  the  court  was  delivered  by 

Gibson,  C.  J. — Baker's  Case,  5  Co.  104,  is  an  explicit  au- 
thority, that  a  refusal  to  join  in  a  demurrer  properly  tendered, 
is  a  waiver  of  the  evidence ;  to  give  effect  to  which,  it  is  the 
business  of  the  court  to  direct  the  jury  to  disregard  it.  But, 
whether  a  party  can  properly  tender  a  demurrer  to  parol  evidence, 
seems  not  so  clear.  The  weight  of  the  authorities  seems  to  be, 
that  where  such  evidence  is  certain,  and  as  little  susceptible  of 
variance  as  written  evidence,  it  stands  .on  the  same  footing. 
Where  it  is  loose,  and  made  up  of  circumstances,  which  may  be 
urged  to  a  jury  with  more  or  less  success  as  evidence  of  other 
circumstances,  it  certainly  is  not  settled,  that  it  may  be  made 
the  subject  of  a  demurrer,  without  the  assent  of  both  parties. 
Yet,  occasional  expressions  are  not  wanting  to  favour  an  opinion 
entertained  by  some,  that  the  party  producing  such  evidence, 
may  be  required  to  join,  on  having  secured  to  him  the  benefit  of 
every  circumstance  which  the  evidence  might  legitimately  con- 
duce to  prove.  The  demurrer  to  evidence  originally  grew  out 
of  necessity ;  there  having  been  no  other  means  of  securing  to 
a  party,  the  right  of  having  the  law  of  his  c^se  decided  by  the 
constitutional  tribunal,  when  there  was  in  reality  no  fact  in  dis- 
pute ;  and  it  fell  into  disuse  only  when  the  increasing  liberality 
of  the  English  judges  in  granting  new  trials,  afforded  a  more 
convenient  method  of  obtaining  the  judgment  of  the  superior 
courts  at  Westminster.  With  us,  there  is  perhaps,  some  reasor 
484 


Jum  25,  1829.]      OF  PENNSYLVANIA.  431 

[Crawford  v.  Jackson.] 

why  the  use  of  it  should  be  retained,  aud  even  encouraged,  inas- 
much as  the  opinion  of  the  court  in  the  last  resort,  cannot  be  had 
on  a  motion  for  a  new  trial  in  the  Common  Pleas.  No  one  can 
be  prejudiced  by  it,  as  it  is,  at  best,  a  desperate  remedy  for  him 
who  has  recourse  to  it ;  and  it  would  be  hard  to  deprive  him  of 
the  miserable  advantage  it  affords  in  comparison  with  a  trial 
before  a  prejudiced  or  pre-determined  jury.  Be  that  as  it  may, 
our  province  is  not  to  legislate,  but  to  pronounce  the  law  as  we 
find  it,  the  legislature  being  alone  competent  to  alter  it  where 
there  is  room  to  dissent  from  the  reason  or  policy  of  its  pro- 
visions. Without  intimating  an  opinion  as  to  any  other  case, 
then,  it  may  be  affirmed,  that  where  there  is  a  demurrer  to  evi- 
dence of  a  fact,  which  is  not  evidence  of  any  *other  r^j^oo-i 
fact,  but  itself  a  substantive  ingredient  of  the  case,  a  L  J 
party  may  be  required  to  join. 

What  then,  was  the  evidence  here  ?  At  no  time  previous  to 
the  assignment,  had  Jackson  a  transaction  with  Crawford. 
Beatty,  to  whom  Jackson  is  indebted,  comes  to  him  along  with 
Crawford,  and  desires  him  to  assign  his  judgment  against  Lam- 
bert, in  payment  of  his  debt  to  Beatty.  Jackson  does  not  open 
his  lips  to  any  one,  except  to  require  his  bonds  of  Beatty ;  one 
of  which  being  delivered  up,  and  a  receipt  for  the  residue  in- 
dorsed on  another,  he  marks,  by  direction  of  Beatty,  the  judg- 
ment to  Crawford's  use.  This  comprises  every  title  of  the 
transaction  in  the  presence  of  the  parties.  The  judgment 
having  afterwards  been  found  worthless,  a  common  friend  calls 
on  Jackson,  who  appears  to  think  himself  liable  (the  witness 
does  not  say  to  Avhom)  for  the  amount  of  the  judgment;  and  he 
afterwards  attempts  to  collect  the  money  from  Lambert.  Now 
it  is  not  pretended,  that  there  was  any  implied  contract  of  war- 
ranty, on  which  Crawford  could  have  recourse  to  Jackson ;  and 
it  has  already  been  twice  decided,  that  the  facts  which  happened 
at  the  time  of  the  transfer,  give  no  colour  to  the  pretext  of  a 
special  agreement.  Indeed,  those  facts  are  not  relied  on  by 
Crawford  himself,  who  claims  the  inference  of  such  an  agree- 
ment, from  Jackson's  subsequent  admission  of  liability  to  some 
one.  But  this  admission  is  attributable  to  a  belief,  that  he  re- 
mained liable  to  Beatty ;  who,  had  he  not  agreed  to  accept  of 
the  assignment  to  Crawford  as  satisfaction,  might  still  have 
recovered  his  debt,  on  the  ground,  that  the  means  of  payment 
which  were  put  into  his  hands,  or  (what  is  the  same)  into  the 
hands  of  a  person  designated  by  him,  had  proved  unavailing. 
But,  the  delivery  of  the  bond  would  be  decisive  proof,  that  he 
had  consented  to  consider  the  assignment  as  satisfaction  ;  and, 
if  Crawford,  also  has  barred  himself  from  proceeding  against 
Beatty,  he  cannot  get  round  the  impediment,  by  going  against 

485 


432  SUPREME  COURT  [Sunbury, 

[Crawford  v.  Jackson.] 

Jackson,  who  did  not  consent  to  become  liable  to  him.  Jackson, 
therefore,  was  mistaken  in  supposing  himself  liable  to  any  one; 
and  to  infer  the  existence  of  a  secret  agreement  of  warranty, 
from  acts  done  under  a  mistaken  belief  of  liability,  and  that, 
too,  in  the  teeth  of  a  witness  who  testifies  to  the  contrary,  would 
be  forced  and  unnatural.  A  jury  may  make  all  natural  and 
reasonable  deductions ;  but,  they  cannot  madly  assume  facts  at 
pleasure,  and  without  the  colour  of  evidence.  The  subsequent 
conduct  of  Jackson  is  attributable  to  an  imaginary  liability  to 
Beatty,  not  to  the  consciousness  of  a  secret  agreement  with 
Crawford,  for  which  there  is  not  the  least  ground  of  suspicion. 
It  seems,  therefore,  that  the  judge  who  tried  the  cause  did  right 
in  directing  the  jury,  that  the  refusal  to  join  in  the  demurrer, 
was  a  waiver  of  the  evidence. 

Huston,  J.,  dissented.     Tod,  J.,  having  been  of  counsel  in 
the  cause,  took  no  part  in  the  decision. 

Judgment  affirmed. 

Cited  by  Counsel,  3  Wh.  383 ;  2  Barr,  199;  1  H.  274. 
Cited  by  the  Court,  2  H.  277. 


[*433]  *[StmBUKY,  June  26, 1829.] 

M'llroy  and  Another  against  M'llroy  and  Another. 

IN   ERROR. 

A  legatee  who  has  assigned  his  interest  under  the  will  to  another  person  is  a 
competent  witness  to  prove  the  will,  although  the  consideration  of  the  assign- 
ment is  a  bond  for  a  given  sum,  payable  to  him  at  a  future  day. 

Error  to  the  Court  of  Common  Pleas  of  Huntingdon 
county. 

On  the  trial  of  an  issue  directed  by  the  Register's  Court  of 
Huntingdon  county,  to  determine  the  validity  of  a  paper,  pur- 
porting to  be  the  last  will  of  Thomas  M'llroy,  William,  his  son, 
who  was  named  in  it  as  one  of  the  executors,  and  also  had  a 
legacy  bequeathed  to  him,  was  oiFered  as  a  witness  in  support 
of  the  will.  He  had  formerly  renounced  the  executorship,  and 
had,  by  an  instrument,  reciting  a  consideration  of  one  hundred 
and  fifty  dollars,  released  his  interest  as  a  legatee  to  William 
M'Williams,  and  Ann,  his  wife,  which  Ann  was  one  of  the 
children  of  Thomas  M'llroy.  The  asserted  consideration  had 
not,  however,  been  paid  to  William  M'llroy,  but  rested  on  a 
single  bill  given  by  William  M'Williams  for  that  amount,  and 
486 


/wne  25, 1829.]      OF  PENNSYLVANIA.  433 

[M'llroy  and  another  v.  M'llroy  and  another.] 

was  expressed  "  to  bo  paid   absolutely."     The  court  admitted 
the  witness,  and  a  bill  of  exceptions  was  taken. 

The  writ  of  error  was  argued  by  Bell  and  Hale,  for  the 
plaintiffs  in  error,  who  contended,  that  the  bond  could  not  be 
enforced  by  William  M'llroy  against  the  obligor;  and,  there- 
fore, the  release  was  without  consideration.  But  a  release  will 
not  render  the  witness  com])etent,  who  was  otherwise  at  the  ex- 
ecution of  the  will.  1  Phil.  Ev.  173,  174;  Peake's  Ev.  428; 
Jackson  v.  Woods,  1  Johns.  Ca.  163 ;  Newliu  v.  Newlin,  1  Serg, 
&  Rawle,  275;  12  Mass.  361 ;  4  Dess.  274. 

3Iiles,  contra,  contended,  that  the  witness  was  admissible; 
observed  upon  the  difference  between  our  act  of  assembly  and 
the  English  statute,  and  quoted,  Hight  v.  Wilson,  1  Dall.  94 ; 
Kossetter  v.  Simmons,  6  Serg.  &  Rawle,  452;  Wyudham  v. 
Chetwynd,  1  Burr,  417;  3  Harr.  &  M'Hen.  513;  Dornick  v. 
lieichenbach,  10  Serg.  &  Rawle,  84 ;  Lessee  of  Cain  v.  Hender- 
son, 2  Binn.  108  ;  Lessee  of  Johnson  v.  Eckart,  3  Yeates,  427  ; 
Lessee  of  Sweitzer  v.  Meese,  6  Binn,  500. 

The  opinion  of  the  court  was  delivered  by 

Gibson,  C.  J. — The  witness  is  the  son  of  the  testator,  and 
was  named  an  executor  and  a  legatee ;  but,  having  renounced 
the  executorship,  and  parted  with  his  legacy  to  his  sister  and 
her  husband,  the  court  admitted  him  as  comjietent  to  prove  the 
execution  of  the  will.  One  ground  of  objection,  that  he  is  in- 
competent from  interest  *which  existed  when  the  will  r*404-] 
is  supposed  to  have  been  made,  was  overruled  in  Kerns  *-  '  -• 
V.  Soxman,  16  Serg.  &  Rawle,  315 ;  and  the  question,  therefore, 
is,  whether  he  now  stands  clear  of  interest  as  a  legatee.  The 
release,  as  it  is  called,  to  his  sister  and  her  husband,  was  an 
equitable  assignment ;  and,  the  witness  could  not  be  affected  by 
the  verdict,  whether  the  will  were  established  or  not,  as  the 
note  given  for  the  consideration,  contained  a  stipulation  that  it 
should  be  paid  in  any  event.  He  stood,  therefore,  precisely  as 
any  other  disinterested  assignor,  who  is  a  competent  witness, 
whether  he  has  parted  with  his  property  in  the  thing,  before 
suit  has  been  brought  to  recover  it,  or  afterwards.  Steele  v. 
The  Pho3nix,  3  Binn.  306,  in  which  this  was  directly  decided, 
perhaps,  for  the  first  time,  is  not  only  consistent  with  the  prin- 
ciples of  all  the  English  and  American  modern  authorities,  but 
particularly  fortified  by  Browne  v.  Weir,  5  Serg.  &  Rawle,  401 ; 
Jacoby  v.  Laussatt,  6  Serg.  &  Rawle,  300 ;  Patten's  Adminis- 
trators V.  Ash,  7  Serg.  &  Rawle,  116  ;  Richter  v.  Selin,  8  Serg. 
&  Rawle,  425 ;  Fetterman  v.  Piummer's  Administrator,  9  Serg, 

487 


434  SUPREME  COURT  [Sunbury, 

[M'llroy  and  another  v.  M'llroy  and  another.] 

<fe  Rawle,  20 ;  North  v.  Turner,  9  Serg.  &  Rawle,  244 ;  Stoever 
V.  Stoever,  9  Serg.  &  Rawle,  434 ;  Dornick  v.  Reichenbach,  10 
Serg.  &  Rawle,  84 ;  Porter's  Executors  v.  Neif,  1 1  Serg.  & 
Rawle,  208;  Willing  v.  Peters,  12  Serg.  &  Rawle,  177,  and 
Willing  V.  Consequa,  1  Peters,  307 ;  a  phalanx  of  authorities, 
which,  were  I  even  so  inclined,  I  should  deem  myself  incompe- 
tent to  overthrow.  But  they  are  in  accordance  with  the  spirit 
of  the  age  which  has  brought  order  out  of  confusion,  and  of  the 
rude  anomalies  of  early  times,  when  the  jury  was  frequently 
plunged  into  darkness  by  a  suspicion,  that  any  light  which  was 
not  of  the  very  purest  kind,  might  lead  them  astray,  constructed 
a  system  of  principles,  founded  in  technical  reason,  no  doubt, 
but  consistent  at  least  with  each  other.  Not  the  least  valuable 
among  these,  is  that  principle  which  prevents  a  witness  from 
being  excluded  on  the  ground  of  interest,  where  the  legal  con- 
sequence of  the  verdict  will  not  be  the  gain  or  loss  by  him,  of  a 
right  which  may  be  made  a  subject  of  contest  in  a  court  of  jus- 
tice. What  is  the  objection  here?  Not  that  the  right  of  the 
witness  to  recover  the  consideration  of  the  assignment,  will  be 
made  better  or  worse  by  the  verdict ;  but,  that  there  may  possi- 
bly be  a  secret  agreement,^hat  the  legacy  shall  be  re-assigned 
as  soon  as  the  will  shall  have  been  established  ;  and,  that  thus, 
a  party  may  in  reality  be  a  witness  in  his  own  cause,  without 
affording  his  antagonist  the  same  advantage.  But  such  an 
agreement  could  not  be  enforced,  and,  like  every  other  which 
rests  on  the  honour  of  the  parties,  it  would  furnish  an  objection 
only  to  the  witness's  credibility.  We  must,  at  least,  suppose 
that  jurors  are  capable  of  weighing  and  making  proper  allow- 
ance for  motives  that  may  create  a  bias,  for  if  they  are  not  so 
in  fact,  the  boasted  excellence  of  the  trial  by  jury,  is  a  miser- 
able delusion.  As  to  the  inequality  of  advantage  between  the 
parties,  it  is  one  of  those  inconveniences  which  necessarily  spring 
r^  .oc-|  from  the  imperfection  of  human  *institutious;  and  which 
L  '  -I  cannot  be  remedied  without  perhaj)S  producing  something 
worse.  On  principle  and  authority,  therefore,  it  seems  to  me  the 
witness  was  properly  admitted. 

Huston,  J.,  and  Tod,  J.,  dissented. 

Judgment  affirmed. 

Cited  by  Counsel,  5  W.  &  S.  435 ;  5  H.  63  ;  7  H.  489 ;  9  H.  298 ;  7  S.  246. 

Cited  by  the  Court,  3  R  409 ;  apparently  approved  in  Search's  Appeal,  1  H. 
Ill,  though  previously  qualified  *to  such  an  extent  as  to  be  virtually  overruled 
in,  6  "NV.  &  S.  510 ;  which  was  followed  in  9  H.  298. 


488 


/wne25,1829.]       OF  PENNSYLVANIA.  435 

[SUNBURY,  JXTNE  25,  1829.] 

Kessler  against  M'Conachy. 

IN    ERROR. 

The  property  of  a  stranger  found  upon  the  demised  premises,  is  liable  to 
distress  by  the  landlord. 

In  a  replevin  by  the  stranger,  he  cannot  call  the  tenant  as  a  witness  to  prove 
no  rent  was  due. 

The  exemption  of  a  stove,  belonging  to  the  tenant,  from  distress,  under  the 
act  of  the  29tli  of  Marcli,  1821,  is  confined  to  that  whicli  is  used  in  his 
family,  and  does  not  extend  to  one  in  his  shop,  apart  from  his  dwelling- 
house. 

Informalities  in  an  avowry  for  rent  in  arrear,  are  cured  by  going  on  to  trial. 

If,  on  the  issue  of  no  rent  in  arrear,  the  jury  find  for  the  defendant,  but 
omit  to  find  the  value  of  the  goods,  judgment  of  retorno  habendo  may  be 
entered. 

A  book,  made  up  by  transcribing  entries,  made  by  a  journeyman  on  a  slate, 
some  of  them  being  transcribed  by  the  journeyman,  and  some  by  the  party, 
some  on  the  same  evening,  and  otiiers  several  days  afterwards,  but  all  within 
two  weeks,  is  not  admissible  in  evidence  as  a  book  of  original  entries,  su[)ported 
by  the  oath  of  the  party. 

Eviction  of  the  tenant  by  the  landlord,  has  no  operation  on  rent  already 
due:  it  suspends  the  rent  of  the  month,  quarter,  or  other  portion  of  time 
running  on  at  the  time  of  eviction. 

If,  after  a  distress,  made  on  tlie  goods  of  a  stranger,  the  tenant  obtains  a 
judgment  of  a  justice  of  the  peace  in  his  favour  in  a  proceeding  under 
the  act  of  the  20tli  of  Marcli,  1810,  to  compel  the  landlord  to  defalcate  the 
tenant  s  just  account,  the  stranger,  having  taken  out  a  writ  of  replevin, 
may  use  this  judgment  as  prima  facie  evidence  on  the  issue  of  no  rent  in 
arrear. 

Error  to  the  Court  of  Common  Pleas  of  Mifflin  county. 

Frederick  Kessler  brought  an  action  of  replevin  against  James 
M'Conachy  for  one  stove  of  the  value  of  twenty-five  dollars. 
The  defendant  avowed  for  rent  in  arrear.  The  plaintiif  rei)lied, 
1.  No  rent  in  arrear.  2.  Non  dernimt.  3.  If  a  lease,  the  ten- 
ant was  evicted  by  the  landlord  before  the  expiration  of  the 
lease.  4.  That  the  article  replevied  is  the  property  of  the 
plaintiff,  and  not  of  John  Bombaugh,  the  tenant. 

Several  bills  of  exceptions  were  taken  on  the  trial.  The  first 
was  to  the  admission  of  the  record  of  David  Milliken,  Esq.,  a 
justice  of  the  peace,  of  a  proceeding  commenced  before  him  the 
1st  of  April,  1824,  in  which  John  Bombaugh,  tenant,  was  com- 
plainant, and  James  M'Conachy,  landlord,  defendant,  to  set  off 
the  tenant's  just  account  against  the  landlord,  who  had  dis- 
trained his  goods  for  rent;  the  justice  having  decided,  on  hear- 
ing the  parties,  that  no  rent  was  *due  from  Bombaugh  p  lopi 
to  M'Conachy,  and  that  he  was  justly  indebted  to  ^  '  J 
M'Conachy  in  the  sum  of  four  dollars  forty-eight  and  three- 

489 


436  SUPREME  COURT  [Sunbury, 

[Kessler  v.  M'Conachy.] 

quarter  cents.  To  the  admissiou  of  this  evidence  the  defendant 
objected.  The  court  rejected  the  evidence,  and  sealed  a  bill  of 
exceptions. 

The  plaintiff  next  offered  Bombaugh,  himself  as  a  witness,  to 
testify  in  respect  to  the  lease,  and  the  ownership  of  the  stove. 
The  court  rejected  his  evidence,  and  sealed  a  second  bill  of  ex- 
ceptions. 

To  support  an  account  against  the  landlord,  a  book,  sworn  by 
Bombaugh,  to  be  his  book  of  original  entries,  was  next  given  in 
evidence  by  the  plaintiff,  as  a  set-off  by  the  tenant  against  the 
rent ;  and,  to  meet  this  evidence,  M'Conachy  offered  his  book  of 
original  entries,  supported  by  his  oath  and  that  of  David  Milli- 
ken,  Esq.  , 

M'Conachy  swore  as  follows  : — "  This  is  my  book  of  original 
entries ;  my  journeyman  made  the  entries,  some  of  them  on  a 
slate.  He  gave  it  in,  may  be,  made,  the  same  evening ;  don't 
think  any  as  long  as  two  weeks ;  I  suppose  less  than  two  weeks ; 
some  of  them  made  the  same  evening,  or  next  day ;  some  of 
them  in  the  week  ;  some  done  by  myself." 

The  evidence  of  David  Milliken,  was  to  this  effect : — "  I  don't 
recollect  the  book.  This  account  was  before  me  on  the  ques- 
tion about  the  rent.  I  think  he  then  said,  that  some  he  entered 
off  the  slate  soon,  and  some  might  have  stood  near  a  couple  of 
weeks." 

Some  alterations  and  erasures  were  apparent  in  the  book,  but 
it  was  admitted,  and  the  court  sealed  a  third  bill  of  exceptions. 

Evidence  was  given  by  the  plaintiff  to  prove  his  ownership 
of  the  stove,  which  it  appeared  he  had  purchased  of  Bombaugh 
for  the  wood-work  of  a  wagon,  and  left  it  in  his  shop  till  he 
should  send  for  it.  The  plaintiff  also  proved  an  eviction  of 
Bombaugh,  the  tenant,  by  the  landlord,  on  the  day  before  the 
expiration  of  the  lease,  which  appeared  to  be  for  a  year,  the 
rent  payable  monthly.  The  distress  was  for  eleven  months  rent 
in  arrear. 

The  following  charge  was  delivered  to  the  jury  by  Burnside, 
President : 

"The  Supreme  Court  have  decided,  (O'Donnel  v.  Seybert,  13 
Serg.  &  Rawle,  57,)  that  where  property  is  found  on  the  prem- 
ises, although  it  does  not  belong  to  the  tenant,  it  is  liable  to 
the  landlord's  distress;  and  in  the  same  book,  pages  180,  181, 
that  the  goods  of  a  stranger  found  on  the  premises,  are  liable  to 
distress  for  rent,  is  one  of  the  early  doctrines  of  the  common 
law  ;  the  reason  of  which  has  long  since  ceased.  Courts  of  jus- 
tice have,  in  many  instances,  leaned  against  it,  but,  it  transcends 
judicial  power  to  abrogate  it.  However,  if  rent  was  due,  and 
unpaid,  and  no  eviction,  the  stove  in  question  was  liable  to  dis- 
490 


June  25  1829.]      O^  PENNSYLVANIA.  436 

[Kessler  v.  M'Conachy.] 

tress,  unless  it  was  exempted  by  the  poor  laws.  The  premises 
rented  were  a  shop.  The  family  of  Bombaugh  lived  at  a  dis- 
tance, in  a  separate  house.  The  stove  distrained  was  in  the 
shop.  Bombaugh  had  a  stove  rented  in  the  house  in  which  his 
family  resided.  By  the  act  of  the  29th  of  March,  *1821,  r*407-i 
one  stove  in  the  possession  of  any  debtor,  shall,  and  is  ^  J 
hereby  exempted  from  levy,  &c.  (His  Honour  here  read  the 
act.)  I  think  it  is  the  family  stove  that  is  exempted ;  the  stove 
that  warms  his  wife  and  children,  and  that  this  is  the  sound  and 
true  construction  of  the  act.  Whether  then,  the  stove  was 
transferred  to  Kessler  or  not,  I  hold,  that  if  there  was  rent 
fairly  due,  and  unpaid  when  the  distress  was  made,  the  landlord 
might  legally  distrain  it.  What  was  the  extent  of  the  lease? 
How  was  the  rent  payable?  You  have  evidence  that  it  was 
leased  for  a  year,  payable  monthly.  Where  the  rent  is  payable 
monthly,  the  landlord  may  distrain  after  the  end  of  any  one 
month,  for  the  rent  due  and  unpaid.  It  is  said,  M'Conachy 
evicted  Bombaugh  before  the  end  of  the  lease.  Did  he  do  so  ? 
You  have  heard  the  evidence  on  this  point,  and  you  will  judge 
of  it.  If  you  are  satisfied  that  the  landlord  entered  on  the 
tenant  before  the  end  of  the  lease,  the  rent  would  be  suspended. 
I  agree  to  the  position,  that  if  the  lessor  enters  into  a  part,  the 
whole  rent  is  suspended.  Here  the  rent  was  payable  monthly. 
He  entered  on  the  last  day,  that  is,  if  there  was  an  eviction,  it 
was  on  the  day  before  the  tenant  should  have  removed  \  I  think 
it  suspended  the  last  month's  rent,  and  no  more ;  for  that 
n)onth  there  is  no  distress.  This  opinion  is  given  under  the 
particular  circumstances  of  the  case.  The  distress  was  for 
eleven  months'  rent ;  it  could  be  for  no  more,  for  the  last  month 
could  not  be  distrained  for,  until  the  rent  was  due.  The  amount 
was  eleven  dollars.  The  defendant's  book  account,  if  you  be- 
lieve it  just,  amounts  to  nine  dollars  and  eighty  cents,  making 
twenty  dollars  and  eighty  cents.  Borabaugh's  book  account 
amounts  to  twelve  dollars  and  one- fourth  of  a  cent,  leaving  eight 
dollars  and  seventy-nine  and  three-fourth  cents  of  rent  due  and 
unpaid. 

"  You  are  the  judges  of  these  books.  If  you  think  the  books 
are  not  books  of  original  entry,  you  ought  to  reject  them.  If 
you  think  any  of  the  items  have  been  altered  to  meet  this  case, 
it  will  destroy  such  entry,  and  such  a  book  ought  to  be  rejected 
by  the  jury.  Here  there  was  no  appraisement ;  so  far  the  land- 
lord proceeded  irregularly,  and  he  ought  to  be  charged  with  all 
the  items  distrained,  and  the  full  value  of  them  before  the  stove 
is  taken  into  consideration.  If  those  goods  are  worth  eight  dol- 
lars and  seventy- nine  and  three-fourth  cents,  then  there  should 
be  a  verdict  for  the  plaintiif ;  and,  as  he  has  had  the  property 

491 


4»7'  SUPREME  CX3URT  [Simbury, 

[Kessler  v.  M'Conachy.] 

delivered  to  him,  you  will  give  him  damages  for  the  unreason- 
able distress.  But  after  deducting  the  articles  that  were  dis- 
trained from  the  amount  of  M'Couachy's  demand,  that  is,  the 
eight  dollars  and  seventy-nine  and  three-fourth  cents,  or  such 
other  sum  as  you  shall  fix  upon,  you  will  find  the  balance  of 
rent  due  M'Conachy,  the  avowant.  There  is  a  point  made  by 
the  defendant's  counsel,  that  Kessler  never  purchased  this  stove; 
if  so,  he  cannot  recover  in  this  action." 

The  following  errors  were  specially  assigned  : — 

"1.  The  court  erred  in  rejecting  the  evidence  contained  in 
the  first  bill  of  excej)tions. 

r^  .00-]  *"  2.  The  court  erred  in  rejecting  the  evidence  con- 
L         J  tained  in  tlie  second  bill  of  exceptions. 

"  3.  The  court  erred  in  admitting  the  evidence  contained  in 
the  third  bill  of  exceptions. 

"  4.  The  court  erred  in  charging  the  jury,  that  the  goods  of 
a  stranger,  found  on  the  premises,  were  liable  to  be  distrained 
for  rent. 

"  5.  The  court  erred  in  charging,  that  the  stove  in  question 
was  liable  to  the  distress. 

"  6.  The  court  erred  in  charging,  that  the  eviction  of  the 
tenant  by  the  landlord,  suspended  no  more  than  the  last  month's 
rent. 

"  7.  The  defendant's  avowry  does  not  name  for  what  lands 
the  rent  was  due,  how  much  was  due,  when,  nor  by  whom  due, 
and  the  jury  have  not  found  the  value  of  the  property  dis- 
trained." 

Benedict,  for  the  plaintiff  in  error,  argued,  1.  That  the  de- 
cision of  the  justice,  offered  in  evidence  on  the  trial,  was  admis- 
sible and  conclusive.  The  proceeding  before  him,  was  instituted 
in  order  to  obtain  a  defalcation  of  the  debt  due  from  the  land- 
lord to  the  tenant,  under  the  provisions  of  the  twentieth  section 
of  the  act  of  the  20th  of  Marcli,  1810.  Purd.  Dig.  458.  The 
landlord  appeared,  was  fully  heard,  and  did  not  appeal  from  the 
decision.  He  is  now  estopped  from  disputing  the  judgment,  and 
it  is  very  oppressive  to  put  the  tenant  a  second  time  to  the 
trouble  of  proving  the  same  facts,  and  still  more  so,  to  dc])rive 
the  stranger,  whose  goods  have  been  M'rongfully  seized,  of  the 
benefit  of  that  estoppel.  It  may  not  always  be  in  his  ])ower  to 
prove  tlie  same  facts  which  the  tenant  had  proved,  and  thus  the 
landlord,  although  precluded  by  the  judgment  from  proceeding 
further  against  the  tenant,  is  at  liberty  to  avail  himself,  against 
an  innocent  stranger,  of  the  summary  and  severe  ]>rocess  of  cn- 
for(;ing  by  distress  the  payment  of  rent,  to  which  a  competent 
tribunal  has  solemnly  decided  that  he  is  not  entitled. 
492 


June  26,1829.]      OF  PENNSYLVANIA.  438 

[Kessler  v.  M'Conachy.] 

2.  It  was  error  to  reject  the  testimony  of  Bombaugh.  As  a 
witness,  he  was  disinterested,  for  his  interest  was  equally  bal- 
anced. If  the  landlord  recovered  against  Kessler,  he  would 
have  been  liable  to  Kessler  for  the  same  amount  as  the  land- 
lord. 

3.  On  the  third  bill  of  exceptions  he  insisted,  that  M'Cona- 
chy's  book  was  not  evidence,  and  cited,  Smith  v.  Lane,  12 
Serg.  &  RawJe,  86,  87,  88;  Sterrett  v.  Bull,  1  Binu.  237; 
Curren  v.  Crawford,  4  Serg.  &  Rawle,  5;  Crouse  v.  Miller,  10 
Serg.  &  Rawle,  155;  1  Bro.  147,  344;  Vance  v.  Fairis,  2 
Dall.  217;  s.  c.  1  Yeates,  321;  Patton's  Administrators  v. 
Ash,  7  Serg.  &  Rawle,  126 ;  Cutbush  v.  Gilbert,  4  Serg.  & 
Rawle,  555 ;  1  Dall.  239 ;  Ingraham  v.  Boekius,  9  Serg.  & 
Rawle,  285 ;  Salk.  285. 

4.  In  respect  to  the  charge  of  the  court,  he  argued,  that  the 
goods  of  a  stranger  were  not  liable  to  distress.  The  right  of 
distraining  for  rent  is  entirely  founded  on  the  relation  between 
landlord  and  tenant.  It  has  its  origin  in  the  feudal  tenures  of 
ancient  times,  when  the  subject  demised  was  generally  a  farm, 
cultivated  by  an  *inferior,  whose  humble  furniture,  r^^oq-i 
stock,  and  implements  of  husbandry,  constituted  all  L  ^ 
the  movable  articles  found  upon  the  laud ;  when  the  haughty 
barons,  disdaining  the  slow  progress  of  a  law  suit,  and  consid- 
ering non-payment  by  their  tenants  as  a  breach  of  the  fealty  due 
from  them,  anticipated  the  effect  of  a  judgment  and  execution, 
and  rudely  seized  their  tenants'  goods.  The  great  owners  of 
lands  thus  possessed  of  an  advantage,  which  no  other  creditor 
shared  with  them,  had  influence  enough  to  carry  the  practice 
beyond  its  original  limits  ;  but,  if  it  is  reduced  to  its  true  prin- 
ciples, it  cannot  be  extended  to  the  adventitious  and  temporary 
occupancy  of  a  mere  stranger,  one  who  knows  not,  at  the  time 
of  leaving  his  goods  upon  the  spot,  that  any  rent  is  due,  or  per- 
haps, that  any  lease  exists,  and  who  suffers  the  same  injustice 
in  having  his  goods  distrained  for  the  rent  of  another,  as  he 
would  in  having  them  levied  on  by  an  execution  for  the  debt  of 
another.  He  cited,  4  Cranch,  299  ;  Com.  Dig.  Rent,  c.  4 ;  Co. 
Litt.  148,  b. 

5.  The  court  also  erred  in  charging  the-  jury,  that  eviction 
only  suspended  the  rent  prospectively.  He  contended,  that  it 
terminated  the  landlord's  claim  in  regard  to  all  antecedent  rent, 
as  well  as  to  that  which  should  come  due  afterwards,  and 
quoted.  Com.  Dig.  Suspension,  D.  Vaughau  v.  Blanchard,  1 
Yeates,  176;  Gilb.  on  Rent.  179;  4  Dall.  124;  Gilb.  Ev.  283, 
279  ;  4  Bac.  Ab.  369. 

Hall,  for  the  defendant  in  error,  insisted  that  the  certificate 

493 


439  SUPREME  COURT  [Sunlmry, 

[Kessler  v.  M'Conachy.] 

of  the  justice  was  properly  rejected.  The  proceeding  before 
him  was  res  inter  alios  acta.  The  judgment  in  a  personal  action 
cannot  be  given  in  evidence  against  one  who  is  no  l)arty, 
although  where  the  proceedings  are  in  rem,  the  rule  may  be 
different.  If  the  decision  of  the  justice  had  been  the  other  way, 
it  would  not  have  been  binding  on  the  plaintiff  in  replevin  ; 
and  upon  the  issue  of  no  rent  in  arrear,  the  defendant  would 
have  been  obliged  to  make  other  proof  of  the  rent  due.  The 
time  when  the  proceeding  was  commenced  before  the  justice,  is 
an  additional  reason  for  rejecting  the  evidence.  The  distress 
had  actually  been  made,  and  was  proceeding  in  the  manner 
prescribed  by  law,  when  the  landlord  received  the  summons  to 
appear  before  the  juatice.  If  he  had  disregarded  it,  judgment 
would  have  been  given  against  him  by  default,  for  any  sum 
which  the  tenant,  on  an  ex  parte  hearing,  might  plausibly  have 
made  out  to  be  due. 

2.  The  rejection  of  Bombaugh's  testimony  certainly  was 
correct.  It  is  impossible  to  show  that  his  interest  was 
equal  either  way.  If  he  could  establish  that  no  rent  was 
due,  neither  Kessler,  the  plaintiff,  nor  M'Conachy,  the  land- 
lord, would  have  any  demand  against  him ;  but  if  M'Conachy 
established  the  demand  against  Kessler,  he  would  be  entitled 
to  sue  Bombaugh,  not  only  for  the  value  of  the  stove,  but  for 
the  costs  and  expenses  of  the  replevin.  O'Donnel  v.  Seybert, 
13  Serg.  &  Rawle,  57. 

3.  It  was  proper  to  let  M'Conachy's  book  go  to  the  jury, 
who  would  determine  according  to  the  principles  justly  laid 
r*A/inl  '^own  by  the  *presiding  judge.  4  Serg.  &  Rawle,  3 ; 
L  ^^^-1  9  Serg.  &  Rawle,  285;  16  Serg.  &  Rawle,  133;  2 
Mass.  Rep.  221. 

4.  It  is  now  too  late  to  assert,  that  the  goods  of  a  stranger, 
found  on  the  premises  demised,  are  not  liable  to  distress.  The 
peculiar  remedy  afforded  to  a  landlord,  has  been  too  long  incor- 
porated into  the  very  nature  and  essence  of  landed  property,  to 
admit  of  being  separated  from  it  unless  by  some  act  of"  positive 
legislation.  Improved  lands  have  been  purchased,  and  vacant 
lands  have  been  improved  with  the  understanding,  that  the  land- 
lord's right  to  enter  and  distrain  upon  all  chattels  to  whomsoever 
they  might  belong,  which  were  found  upon  the  premises  after 
rent  became  due,  was  inviolable.  The  established  form  of  setting 
forth  the  cause  of  taking  goods,  is  an  avowry,  or  acknowledg- 
ment, that  they  were  taken  by  the  landlord  for  rent  due  to  him 
from  the  tenant  of  the  locns  in  quo,  and  not  from  the  plaintiff 
in  the  replevin  as  such ;  and  the  replication,  that  the  goods  in 
question  belonged  to  the  plaintift^  and  not  to  the  tenant,  was  a 
nullity. 

494 


Jun&  25  1829.]       OF   PENNSYLVANIA.  440 

[Kessler  v.  M'Conachy.] 

5.  In  respect  to  the  eviction,  he  contended,  that  it  only  sus- 
pended the  rent  to  come  due. 

6.  All  objections  to  the  form  of  the  avowry,  were  waived  by 
proceeding  to  trial ;  and  it  was  unnecessary  in  this  case,  where 
the  article  was  delivered  to  the  plaintiff,  to  find  its  value.  Weidel 
V.  Roseberry,  13  Serg.  &  Rawle,  178. 

The  opinion  of  the  court  was  delivered  by 

Rogers,  J. — We  agree  with  the  Court  of  Common  Pleas, 
"That  the  property  of  a  stranger,  found  on  the  premises,  is 
liable  to  distress  by  the  landlord."  And  this  is  on  the  authority 
of  O'Donnel  v.  Seybert,  13  Serg.  &  Rawle,  57 ;  Weidel  v. 
Roseberry,  13  Serg.  &  Rawle,  180,  grounded  on  the  principles 
of  the  common  law ;  and,  as  we  think,  the  proper  construction 
of  the  act  of  the  1st  of  March,  1772,  entitled  an  act  for  the  sale 
of  goods  distrained  for  rent,  &c. 

Where  the  goods  of  a  stranger  are  taken  for  rent,  the 
tenant  will  be  liable  over,  and  the  measure  of  damages  will 
be,  the  loss  sustained  by  the  sacrifice  of  property,  and  in  this 
case,  the  costs  of  the  replevin ;  and  this  is  a  sufficient  answer 
to  the  second  bill  of  exceptions,  whether  the  tenant  is  a  com- 
petent witness  in  the  action  brought  by  the  stranger.  He 
would  not  be  equally  interested,  as  argued  at  the  bar,  but  his 
interest  would  be  greater  in  favour  of  the  plaintiflP  in  replevin. 
13  Serg.  &  Rawle,  57. 

The  plaintiff  in  error  has  taken  seven  exceptions,  all  of 
which,  it  will  be  unnecessary  particularly  to  consider.  We 
shall  content  ourselves  with  citing  a  single  authority,  and  ob- 
serving, that  the  fifth  and  seventh  exceptions  have  not  been 
sustained.     Weidel  v.  Roseberry,  13  Serg.  &  Rawle,  178. 

The  points  principally  relied  on,  are  those  embraced  in  the 
third,  fifth,  and  sixth  exceptions. 


[*441] 


•"The  defendant  in  replevin  offered  in  evidence  what 
he  called  his  book  of  origiual  entries,  accompanied  by 
his  own  oath,  and  the  oath  of  David  Mil  liken,  Esq.  The  de- 
fendant, M'Conachy,  being  sworn,  says,  "  This  is  my  book  of 
original  entries.  My  journeyman  made  the  entries,  some  of 
them  on  a  slate.  He  gave  it  in,  may  be,  made,  the  same  eve- 
ning. Don't  think  any  as  long  as  two  weeks.  I  suppose  less 
than  two  weeks.  Some  of  them  made  the  same  evening,  or 
next  day.     Some  of  them  in  the  week  ;  some  done  by  myself." 

David  Milliken,  Esq.,  says,  "I  don't  recollect  the  book.  This 
account  was  before  me  on  the  question  of  rent.  I  think  he, 
(M'Conachy,)  then  said,  that  some  he  entered  off  the  slate,  and 
some  might  have  stood  near  a  couple  of  weeks." 

Several  objections  occur  to  this  evidence.     The  entries  were 

495 


441  SUPREME  COURT  [Sunbury, 

[Kessler  v.  M'Conachy.] 

first  made  by  tlie  journeyman  on  a  slate,  and  if  they  liad  been 
copied  by  him  in  a  reasonable  time,  and  j)roved  by  his  oath, 
there  would  have  been  no  objection  to  the  testimony ;  or,  if 
M'Conachy  had  made  the  entries,  and  had  afterwards  copied 
them  in  the  book,  it  might  have  been  deemed  sufficient.  And 
this  would  have  been  extending  the  principle  as  far  as  good 
policy  requires.  It  was,  however,  copied  by  M'Conachy,  not 
immediately,  nor  on  the  same  evening,  but  some  of  the  items 
may  not  have  been  entered  for  nearly  two  weeks  after  the  work 
is  alleged  to  have  been  done.  Vance  v.  Fairis,  1  Yeates,  321. 
The  defendant  relies  on  his  own  oath,  without  producing  the 
journeyman,  or  accounting  for  his  absence,  by  which  he  de- 
prives the  plaintiif  of  the  benefit  of  a  cross-examination,  and 
the  possibility  of  showing  from  his  testimony,  that  the  work 
had  not  in  fact  been  done.  The  defendant,  as  it  would  appear, 
derived  his  knowledge  from  the  entries  on  the  slate,  from  which 
he  extracted  the  charges  on  the  book.  The  admission  of  the 
oath  of  a  party,  to  prove  a  book  of  original  entries,  is  from 
necessity ;  and  where  the  necessity  does  not  exist,  to  avoid 
abuse,  it  should  be  received  with  caution.  The  entries  should 
have  been  made,  and  transferred  on  or  about  the  time  the  work 
was  done;  and  it  was  incumbent  upon  the  plaintiff  to  distinguish 
the  items  that  were  so  made.  To  admit  in  evidence,  entries 
after  a  week  or  more,  would  necessarily  cause  mistakes,  and 
might  be  the  means  of  great  fraud.  Books  of  original  entries 
are,  at  best,  but  dangerous  evidence,  and  we  think,  call  for  more 
clear  proof  than  has  here  been  given. 

It  is  said,  there  was  error  in  instructing  the  jury,  that  the 
eviction  of  the  tenant  by  the  landlord,  suspended  the  last 
month's  rent,  and  no  more.  In  this  we  perceive  no  error. 
The  property  was  leased  for  a  year,  the  rent  payable  monthly, 
and  the  eviction  took  place  the  day  before  the  lease  expired. 
The  general  principle  is,  that  if  a  lessor  enter  upon  the  lessee 
for  life,  or  years,  into  part,  and  thereof  disseise,  or  put  out  the 
lessee,  the  rent  is  suspended  in  the  whole,  and  shall  not  be  ap- 
portioned for  any  part.  Co.  Litt.  148,  b.  An  interruption  in 
r*449T  ^^^®  enjoyment  of  the  premises  demised,  will  *suspend 
L  ^^"^J  the  rent.  4  Dall.  125;  4  Cranch,  299;  Com.  Dig. 
title  Rent,  C.  4 ;  Com.  Dig.  title  Suspension,  D. ;  1  Yeates,  176  ; 
Gilb.  on  Rent,  179 ;  Gilb.  L.  E.  270,  283 ;  4  Binn.  369. 

Where  the  lessee  takes  a  lease  of  part  of  the  land,  or  enters 
wrongfully  into  part,  there  are  a  variety  of  opinions,  whether 
the  entire  rent  shall  not  be  suspended  during  the  continuance 
of  such  a  lease,  or  tortious  entry ;  and  in  the  last  case,  it  seems 
to  be  the  better  opinion,  and  the  settled  law  at  this  day,  that 
the  tenant  is  discharged  from  the  payment  of  the  whole  rent, 
496 


Jurw  25,  1829.]      OF  PENNSYLVANIA.  442 

[Kessler  v.  M'Conachy.] 

till  he  be  restored  io  the  whole  possession,  that  no  man  might 
be  encouraged  to  injure  or  disturb  his  tenant  in  possession, 
whom,  by  the  feudal  law,  he  ought  to  protect  and  defend.  4 
Bac.  369,  title  Rent,  letter  M.  Thus  it  will  be  perceived,  that 
where  the  lessor  enters  on  a  part,  the  entire  rent  for  the  whole 
premises  is  suspended ;  and  the  reason  given  is,  that  the  rent 
cannot  be  apportioned.  In  this  case,  the  entry  was  on  the 
whole,  but  the  rent  had  been  apportioned  by  the  parties,  so 
that  the  question  remains,  how  far  the  doctrine  of  suspension 
extends  ;  whether  it  embraces  the  rent  for  the  year,  or  the  last 
mouth,  which  was  not  then  due.  The  suspension  of  the  rent  is 
intended  as  a  punishment,  and  operates  in  the  nature  of  a  for- 
feiture, so  that  we  do  not  feel  inclined  to  extend  it  further  than 
the  adjudged  cases.  On  a  careful  search,  I  do  not  find  any  case 
in  which  the  precise  point  has  occurred ;  we,  therefore,  feel  our- 
selves at  liberty  to  give  the  rule  such  a  construction  as  may  be 
most  reasonable.  We  are  of  the  opinion,  that  the  court  were 
right  in  confining  the  suspension  of  the  rent  to  the  month  not 
due.  As  the  rent  was  payable  monthly,  the  landlord  might 
distrain  at  the  end  of  each  month.  To  extend  the  princii)le 
further,  might,  in  some  cases,  operate  as  a  most  grievous 
penalty ;  as  where  there  was  a  lease  for  five  years,  the  rent 
payable  annually,  but  remaining  unpaid,  and  an  eviction, 
perhaps,  through  mistake,  the  last  day  on  which  the  lease 
expired. 

The  landlord's  warrant  was  dated  the  30th  of  March,  1824, 
and  the  distress  was  made  the  31st  of  March,  on  which  the  con- 
stable levied  a  stove  and  pipe,  which  is  the  plaintiff's  cause  of 
action.  On  the  1st  of  April,  1824,  the  tenant,  in  pursuance  of 
the  twentieth  section  of  the  act  of  the  20th  of  March,  1810, 
entered  a  proceeding  to  compel  the  landlord  to  defalcate,  or  set 
off  an  account,  which  he  alleged  he  had  against  the  landlord. 
On  hearing,  the  justice  decided,  that  there  was  no  rent  due  to 
M'Conachy,  and  that  he  was  indebted  to  Bombaugh,  the  tenant, 
four  dollars  and  forty-eight  cents.  The  plaintiff  in  replevin 
having  replied  to  the  avowry,  no  rent  in  arrear,  offered  the 
record  in  evidence. 

In  general,  no  one  can  be  bound  by  a  verdict  or  judgment, 
unless  he  be  a  party  to  the  suit,  or  be  in  privity  with  the  party, 
or  possess  the  power  of  making  himself  a  party.  For  it  is  said, 
and  with  the  utmost  justice,  that  he  should  not  be  bound  by 
the  result  of  an  inquiry  to  which  he  was  altogether  a  stranger. 
And  this  is  said  to  be  universally  acknowledged,  and  is  certainly 
supported  by  a  host  of  *authorities,  which  I  do  not  r*44o-| 
intend  to  controvert.  I  also  concede,  that  it  is  a  L  J 
general,  but  by  no  means  a  universal  rule,  that  a  verdict  shall 

VOL.  I.— 32  497 


443  SUmEME  COUKT  [Sunbwry, 

[Kessler  v.  M'Conachy.] 

not  be  used  as  evidence  against  a  man,  where  the  opposite  ver- 
dict would  not  have  been  evidence  for  him ;  or,  in  other  words, 
the  benefit  to  be  derived  from  the  verdict  must  be  mutual.  And 
the  reason  given  for  the  rule  is,  because,  if  he  be  an  utter 
stranger  to  the  fact,  it  is  perfectly  res  nova,  between  him  and 
the  defendant ;  and,  if  it  be  no  prejudice  to  the  plaintiif,  had 
the  fate  of  the  verdict  been  as  it  would,  he  cannot  be  entitled  to 
seek  a  benefit,  for  it  would  be  unequal,  since  the  cause  is  a  new 
matter  between  the  parties,  that  the  jury  should  be  swayed  by 
any  prejudice;  (Gilb.  L.  E.  1  Stark.  195,  in  note);  and  because 
the  former  verdict  may  have  been  obtained  upon  the  evidence  of 
the  party,  who  seeks  to  take  advantage  of  it.  That  these  are 
general  rules,  there  can  be  no  doubt,  and  if  this  case  comes 
within  them,  the  evidence  was  properly  rejected.  In  assigning 
the  reasons,  which  induce  the  court  to  differ  in  opinion  from  the 
Common  Pleas,  it  will  be  necessaiy  to  attend  to  the  relative 
situation  of  the  parties.  The  plaintiff's  goods  were  taken  to 
satisfy  the  rent  alleged  to  be  due,  because  being  on  the  premises 
at  the  time  of  the  distress,  the  law  presumes,  (which  presump- 
tion, from  motives  of  policy  cannot  be  rebutted,)  that  they  are 
the  goods  of  the  tenant.  The  plaintiff"  concedes  tnis,  and  pleads, 
no  rent  in  arrear ;  and  alleges,  that  the  matter  has  been  tried  by 
a  court  of  competent  jurisdiction,  of  which,  he  offers  record  evi- 
dence; which  is  opposed,  because  it  is  res  inter  alios  acta,  and 
on  the  ground  of  a  want  of  mutuality.  It  is  contended,  that  -it 
ought  to  be  admitted  as  the  evidence  of  a  fact,  and  an  adjudica- 
tion in  rem.  We  do  not  consider  the  plaintiff"  in  replevin  a 
stranger  to  the  controversy  between  the  landlord  and  tenant ;  on 
the  contrary,  the  issue  between  them  was  one  in  which  he-was 
materially  interested ;  for  if  there  was  no  rent  in  arrear,  there 
was  no  pretence  on  which  his  goods  were  liable  to  seizure.  If 
Kessler  had  been  offered  as  a  witness  before  the  justice,  would 
any  person  say  he  would  have  been  a  competent  witness  ?  And, 
upon  what  other  principle  would  he  be  rejected,  than  because  he 
was  interested  in  defeating  the  landlord,  and  by  this  means,  re- 
lieving his  goods  from  distress.  You  cannot  separate  their 
interests ;  for,  unfortunately  for  Kessler,  they  are  embarked  in 
the  same  bottom. 

We  will  now  proceed  to  show  some  cases,  where,  merely  be- 
cause they  are  engaged  in  the  same  transaction,  although  not 
parties  to  the  judgment,  these  general  principles  have  been 
thought  most  to  apply.  Thus  a  suit  on  a  joint  and  several  bond, 
against  each  of  the  obligors,  a  verdict  and  judgment  for  one, 
which  are  offered  in  evidence,  or  pleaded  in  favour  of  the  other ; 
upon  what  principle  is  this  a  defence ;  but  because,  although  not 
parties  to  the  suit,  they  are  so  far  interested  in  the  same  trans- 
498 


June  25, 1829.]      OF  PENNSYLVANIA.  443 

[Kessler  v.  M'Conachv.] 
action,  as  that  a  verdict  and  judgment  for  one,  is  conclusive  for 
all.  But,  reverse  the  case,  and  suppose  the  verdict  and  judgment 
for  the  obligee,  if  evidence  *at  all,  which  is  questionable,  r^^^^-i 
it  certainly  would  not  be  conclusive.  And  here  it  might  ^  J 
be  argual,  there  would  be  a  want  of  mutuality.  In  an  action, 
by  A.  against  B.,  to  recover  damages,  for  the  value  of  a  slave 
sold  by  B.  to  A.,  and  who  had  been  recovered  by  a  paramount 
title,  by  C.  from  A.,  the  record  of  the  action  between  C.  and  A., 
is  evidence  of  the  fact  of  eviction,  and  of  the  damages ;  but,  as 
is  said,  not  of  C.'s  title.  Saunders  v.  Hamilton,  2  Hayw.  226, 
282  ;  Blasdale  v.  Babcock,  1  Johns.  Rep.  517  ;  Tyler  v.  Ulmer, 
12  Mass.  Rep.  166.  So,  also,  if  suit  be  brought  against  the 
sheriff,  for  an  escape,  and  a  verdict  for  the  defendant,  in  an 
action  on  the  recognisance,  the  verdict  would  be  evidence  for 
the  sureties. 

It  was  not  contended,  that  the  record  was  conclusive ;  but, 
prima  facie  evidence  of  the  fact,  of  no  rent  in  arrear.  And,  in 
this  view,  the  case  of  Cormack  v.  The  Commonwealth,  5  Binn. 
184,  is  an  authority,  which  has  an  essential  bearing  on  the  ques- 
tion. It  is  there  decided,  that  a  judgment,  in  an  action  against 
the  sheriff  alone,  of  which  his  sureties  had  no  notice,  is  jyriiiia 
facie,,  although  not  conclusive  evidence,  as  to  the  amount  of 
damages  in  a  subsequent  suit,  upon  the  recognisance,  against  the 
sheriff  and  his  sureties.  And  surely,  if  it  was  evidence  against 
them,  it  would  be  evidence  for  them,  in  the  event  of  a  different 
finding,  and  this  would,  I  conceive,  be  this  very  case.  The 
record  of  a  recovery  in  ejectment,  against  a  covenantee,  is  not 
conclusive  evidence  against  the  covenantor,  if  he  had  no  notice 
of  the  ejectment.  Leather  v.  Poultney,  4  Binn.  356.  It  was 
not  disputed,  but  that  vf  as  prima  facie  evidence. 

It  is  said,  the  judgment  was  properly  rejected,  as  being  res 
inter  alios  acta.  This  I  do  not  understand  as  confined  to  judg- 
ments, and  if  it  should  be  construed  to  extend  to  every  trans- 
action between  the  landlord  and  tenant,  (and  it  is  difficult  to 
draw  the  distinction,)  it  would  leave  the  stranger  without 
remedy.  It  will  hardly  be  contended,  but  that  the  declara- 
tions, or  admissions  of  the  landlord  to  his  tenant,  would  be 
evidence  ;  and  if  a  settlement  had  taken  place  between  them, 
the  stranger  might  avail  himself  of  it,  and  yet  it  would  be 
liable  to  the  objection  of  being  res  inter  alios  acta.  A  settle- 
ment may  be  given  in  evidence,  but  according  to  the  argument 
of  the  defendant  in  error,  a  judgment  confessed  upon  that 
settlement  cannot.  If  a  landlord  recovers  judgment,  issues 
exection,  and  levies  the  rent  by  due  course  of  law,  it  would 
be  singular  if  the  legal  satisfaction  would  not  be  evidence  in 
a  suit  between  him  and  a  stranger,  on  whom  he  had  distrained 

499 


444  •      SUPREME  COURT  [Sunbuty, 

[Kessler  v.  M'Conachy.] 

for  the  same  rent.  Wliat  are  the  consequences  of  the  doc- 
trine? If  the  tenant  had  brought  the  replevin,  which  he 
might,  the  record  would  have  b(ieu  conclusive  on  the  plea  of 
no  rent  in  arrear.  But  by  excluding  the  record,  you  enable 
the  landlord  to  recover  the  rent,  although  it  has  already  been 
decided  by  a  court  of  competent  jurisdiction  that -none  was 
due,  in  a  suit  in  which  he  had  full  opportunity  of  being  heard, 
r*44^1  *^^^  where  there  has  been  an  express  adjudication, 
L  -I  ui)on  the  very  matter  in  controversy.  One  of  two 
consequences  must  necessarily  follow ;  either  the  plaintiflf  is 
without  remedy,  or  he  must  bring  suit  in  which  he  may  re- 
cover not  only  the  amount  of  the  rent,  but  his  damages  and 
costs.  The  landlord  effects  that  indirectly,  which  he  has  failed 
to  do  in  a  suit  between  himself  and  his  tenant.  This  would 
give  an  opportunity  for  collusion  between  the  tenant  and  the 
landlord  to  defraud  the  stranger,  or  for  collusion  between 
the  stranger  and  the  landlord  to  defraud  the  tenant.  The 
truth  is,  they  are  such  privies  in  interest,  as  to  bring  them 
strictly  within  the  exception  to  the  general  rule.  The  testimony 
is  not  liable  to  the  objection,  which  always  struck  me  as  the 
most  forcible,  that  the  judgment  may  have  been  obtained  upon 
the  evidence  of  the  party  who  seeks  to  take  advantage  of  it ; 
for  Kessler  would  have  been  incompetent  on  the  ground  of 
interest.  It  does  not  come  within  the  rule  res  inter  alios  acta, 
as  that  applies  to  a  stranger,  which  he  is  not,  inasmuch  as  he 
has  a  direct  and  immediate  interest  in  the  suit ;  nor  will  the 
objection  of  a  want  of  mutuality  avail  the  defendant  in  error, 
as  although  good  as  a  general  rule,  it  is  by  no  means  without 
exception.  Evidence  may  frequently  be  given  against  a  party, 
which  cannot  be  heard  in  his  favour. 

All  that  has  been  heretofore  contended  is,  that  the  record  was 
pinma  facie  evidence.  There  is,  however,  a  class  of  cases,  which 
it  resembles  more  in  principle  than  the  general  rule,  to  which  it 
has  been  likened.  It  is  an  adjudication  in  I'em,  upon  the  precise 
point  in  dispute,  between  the  real  parties,  the  landlord  and 
tenant,  which  binds  not  only  them,  but  all  who  stand  in  the 
relation  of  privies  in  blood,  or  estate,  or  privies  in  law.  It  is 
not  essential,  that  either  the  parties,  or  the  form  of  action, 
should  be  precisely  the  same ;  if  they  are  substantially  so,  it 
is  all  that  is  required.  They  are  substantially  the  same  for  all 
legal  consequences  to  the  tenant ;  for  it  cannot  be  doubted, 
that  in  case  the  plaintiff  in  replevin  be  bound  to  pay  the  rent, 
the  tenant  would  be  answerable  over ;  and  this  is  the  principle 
we  have  decided  in  this  case,  and  with,  as  I  understand, 
the  assent  of  the  whole  court.  If  the  landlord  had  distrained 
the  goods  of  the  tenant,  he  would  have  been  estopped  by  the 
500 


Jw7i^  25, 1829.]      OF  PENNSYLVANIA.  445 

[Kessler  v.  M'Conachy.] 

judgment ;  but,  as  he  has  thought  proper  to  proceed  against  the 
goods  of  a  stranger,  it  is  contended,  it  is  not  even  pnma  fade 
evidence. 

The  record  is  admissible  on  another  principle.  A  judgment, 
ascertaining  a  precise  fact,  character,  or  privilege,  is  always 
evidence,  whenever  that  fact,  character,  or  privilege,  comes  in 
question  between  other  parties.  2  Str.  1109 ;  5  Burr.  2601 ; 
1  Burr.  146 ;  9  Mod.  66 ;  1  Stark,  on  Ev.  188 ;  7  Cranch, 
318.  The  admissibility  of  the  judgment,  to  prove  the  fact 
itself,  and  with  a  view  to  its  legal  consequences,  is  on  the 
ground,  that  every  such  judgment  may  be  considered  as  oper- 
ating in  rem.  1  Stark,  188.  The  fact  in  issue  was,  that  there 
was  no  rent  in  arrear,  asserted  by  one,  and  denied  by  the 
*other ;  and  it  is  no  answer  to  say,  that  it  goes  the  [-*44/^i 
whole  length  of  supporting  the  plaintiff's  action.  It  L  J 
will  be  observed  that  the  plaintiff  in  replevin  does  not  insist 
upon  the  judgment  as  an  estoppel,  (which  he  might,  it  being 
substantially  a  trial  between  the  tenant  and  landlord,)  but 
merely  offers  the  record  as  prima  facie  evidence  of  the  fact, 
of  no  rent  in  arrear.  And  what  better  or  more  unexception- 
able proof  could  there  be  of  that  fact ;  to  what  objection  is 
it  exposed?  The  landlord  had  a  full  and  fair  trial  before 
a  court  of  competent  jurisdiction.  He  acquiesces  in  the  de- 
cision of  the  justice,  and  is  estopped  to  deny  the  truth  of  the 
finding;  and  yet  he  contends,  it  is  not  even  evidence  in  a 
suit  where  the  precise  point  is  in  issue,  between  him  and  a 
person  whose  goods  were  only  liable  because  they  were  on  the 
demised  premises  at  the  time  of  the  distress.  If  this  should 
be  the  law,  in  cases  where  it  had  been  adjudged  there  was  no 
rent  due,  the  landlord  will  merely  have  to  watch  when  the 
goods  of  a  stranger  are  upon  the  premises,  on  which  he  may 
distrain,  and  by  this  means,  avoid  the  legal  consequences  of  a 
judgment  against  him. 

Gibson,  C  J.,  dissented  as  to  the  admissibility  of  the  judg- 
ment given  by  the  justice  of  the  peace,  and  gave  the  following 
opinion : 

As  to  one  point,  I  regret  that  I  cannot  concur  in  the  opinion 
just  delivered.  It  is  an  admitted  rule  that  no  one  shall  have  ad- 
vantage from  a  judgment,  who  would  not  have  been  prejudiced 
by  it ;  and,  if  there  be  any  imaginable  case  to  which  it  is  appli- 
cable, it  seems  to  me  this  is  one.  I  do  not  see  how  it  can  be 
maintained,  that  there  was  privity  between  the  plaintiff  and  the 
tenant.  The  goods  were  distrained  merely  because  they  hap- 
pened to  be  on  the  premises,  and  not  in  consequence  of  any  sup- 
posed relation  of  the  parties.     It  is,  however,  urged  with  some 

501 


446  SUPREME  COUET  [Sunbw-y, 

[Kessler  v.  M'Conachy,] 

plausibility,  that  as  the  owner  would  have  an  action  against  the 
tenant  for  money  paid  to  his  use,  the  landlord  would  be  able, 
notwithstanding  the  judgment  in  favour  of  the  tenant,  to  re- 
cover the  rent  from  him  circuitously.  But  would  the  judgment 
be  evidence  against  the  owner  of  the  goods,  (for  that  is  the  test,) 
in  case  it  had  been  in  favour  of  the  landlord  ?  The  owner  cer- 
tainly would  not  be  the  less  a  stranger,  because  he  would  have  his 
action  over  against  one  who  might  not  l)e  worth  a  shilling.  But 
a  verdict  and  judgment  operate  as  an  estoppel,  which  Lord  Coke 
says,  Co.  Litt.  352,  a,  binds  only  parties  and  privies ;  so  that  a 
stranger  shall  neither  take  advantage  of  it,  nor  be  bound  by  it ; 
and  in  specifying  the  different  sorts  of  privity  that  may  exist  in 
;the  law,  3  Co.  23  ;  4  C.  123,  he  says  not  a  word  about  privies  in 
responsibility.  In  Pattou  v.  Caldwell,  1  Dall.  419,  such  privity 
was  held  to  be  insufficient  to  introduce  a  verdict  against  one  un- 
derwriter to  affect  the  others,  without  an  agreement  on  their  part 
to  be  bound  by  it.  The  best  writers  say  that  a  judgment  is  evi- 
dence only  against  those  who  claim  as  privies  in  blood,  or  estate, 
or  in  law.  Stark.  Ev.  part  II.  192;  1  Phil.  Ev.  245;  neither 
r*4471  ^^  which  includes  *the  owner's  case ;  and  if  he  be  neither 
L  -I  party  nor  privy,  I  can  see  nothing  to  take  it  out  of  the 
general  rule.  Those  instances  which  are  usually  adduced  as 
exceptions,  are  in  fact  not  so ;  the  record  being  received,  not  as 
evidence  of  the  fact  adjudicated,  but  as  being  the  very  fact. 
On  this  elementary  distinction,  which  is  illustrated  in  Burr  v. 
Gratz,  4  Wheat.  213,  we  ruled  the  case  alluded  to,  as  having 
been  decided  in  1827,  at  Pittsburg.  There,  a  defendant  in 
ejectment,  who  had  set  up  an  old  title  in  a  third  person,  was 
permitted  to  show  the  record  of  a  recovery  by  such  third  person 
against  the  plaintiff  in  the  action  at  bar,  not  to  prove  that  the 
stranger  had  the  better  title,  (the  fact  adjudicated,)  but  to  rebut 
a  presumption  from  lapse  of  time,  of  his  having  abandoned  it ; 
and,  to  that  end,  the  judgment  was  held  competent  as  a  distinct 
and  independent  fact.  Now,  for  what  was  the  judgment  of  the 
justice  offered  here?  Not  to  show  the  naked  existence  of  a 
proceeding  between  the  landlord  and  the  tenant,  or  that  the 
tenant  denied  that  anything  was  in  arriere — and  without  oper- 
ating as  an  estoppel,  it  could  prove  nothing  else — but  to  show 
the  fact  adjudicated,  that  no  rent  was  in  truth  due  when  the 
distress  was  made.  Mr.  Starkie  speaks  of  the  object  for  which 
a  judgment  may  be  offered ;  whether  with  a  view  to  establish 
the  mere  fact,  that  such  a  judgment  was  pronounced,  and  the 
legal  consequences  of  such  fact,  or  as  a  medium  of  proving  some 
fact  found  by  the  verdict :  and,  where  such  fact  has  been  found 
in  a  matter  of  private  right,  in  regard  to  which  the  reputation 
of  the  country  would  be  inadmissible,  he  says,  the  record  is 
502 


/wne  25, 1829.]       OF  PENNSYLVANIA.  447 

[Kessler  v.  M'Conachy.] 

clearly  iucompeteut  to  prejudice  or  benefit  a  stranger ;  Treat. 
Ev.  part  II.  182,  186,  187 ;  the  excepted  cases  being,  where 
the  proceeding  was  in  rem,  to  which  all  the  world  is  in  law  a 
party,  or  where  the  matter  is  of  a  public  nature,  to  which  all 
the  world  is  in  fact  a  party.  Now,  the  judgment  here  was  cer- 
tainly inter  partes,  and  in  a  matter  of  private  right ;  and,  what 
are  its  legal  consequences  as  divested  of  those  incidents  that 
would  appertain  to  it  between  parties  or  privies?  Certainly 
not  the  establishment  of  the  fact  found  by  the  justice,  that  no 
rent  was  in  arrear,  and  an  esto})pel  of  the  landlord  to  deny  it. 
There  are,  however,  material  consequences,  which  sometimes 
proceed  from  a  judgment  nakedly  considered  as  an  occurrence 
or  an  act;  such,  for  instance,  as  the  justification  of  an  executor 
in  paying  a  debt  bona  fide  recovered  of  him,  whether  it  was 
originally  just  or  not ;  and  such  are  the  consequences  to  which 
the  elementary  writers  allude.  But,  if  the  judgment,  here, 
were  offered  to  produce  any  other  consequence  than  to  establish 
the  fact  found  by  the  justice,  I  am  unable  to  perceive  it. 

The  rules  of  evidence  are  founded,  no  doubt,  in  technical 
reason.  But  we  must  not  forget  that  it  is  not  reason,  but  con- 
venience which  requires  that  a  judgment  be  conclusive  in  any 
case.  But  that  it  should  ever  after  prevent  an  injured  party 
from  showing  the  truth  against  all  persons,  is  required  neither 
by  reason  nor  convenience.  *That  a  judgment  should  r*44o-i 
not  conclude  one  who  had  no  opportunity  to  contest  the  L  J 
matter,  seems  to  be  required  by  the  plainest  principles  of  natu- 
ral justice ;  and,  on  the  other  hand,  that  mutuality  of  advan- 
tage, which  has  become  the  foundation  of  a  familiar  maxim  of 
equity,  equally  requires,  that  he  should  not  derive  a  benefit 
from  it.  But,  however  we  may  esteem  the  law  of  evidence,  it 
ought  not  to  admit  of  a  question,  whether  its  obligation  be  not 
paramount  to  all  considerations  of  reason  or  expediency.  Sys- 
tems of  jurisprudence  are  necessarily  complex  and  artificial ; 
and,  although  the  law  of  evidence  be  not  the  perfection  of  rea- 
son, justice  will,  perhaps,  not  be  promoted  by  relaxing  any  of 
its  rules. 

I  am  not,  however,  for  rejecting  the  record,  merely  because 
the  proceeding  was  instituted  subsequently  to  the  distress.  It 
was  offered  to  prove  a  pre-existing  fact ;  and  evidence  is  not  the 
less  competent,  because  it  has  arisen  since  the  inception  of  the 
proceeding  in  which  it  is  produced.  Nor  do  I  rely  on  the  denial 
of  the  right  of  appeal,  by  which  the  landlord  is  effectively  de- 
prived of  a  trial  by  jury ;  a  circumstance  which  ought,  })erhaps, 
to  exempt  this  particular  case.  My  objection  is  founded  on  the 
general  rule,  as  I  have  stated  it ;  according  to  which,  it  seenis 
to  me,  the  record  was  properly  excluded. 

503 


448  SUPREME  COURT  [Sunbury, 

[Kessler  v.  M'Conachy.] 

Tod,  J.,  dissented  on  the  same  point,  but  only  because  the 
proceedings  before  the  justice  were  instituted  after  the  landlord 
had  distrained. 

Judgment  reversed. 

Cited  by  Counsel,  2  Penn.  E.  287:  2  M.  41,  268;  4  R.  409;  5  Wh.  11, 
277;  2  W.  360;  3  W.  131,  325;  6  W.  497;  6  W.  428;  8  W.  545;  2  Barr, 
287;  8  H.  203;  10  H.  148;  11  H.  158;  2  C.  386;  5  C.  143;  2  Wright,  342; 
7  Wright,  409 ;  2  S.  294;  5  S.  211 ;  7  S.  273;  9  S.  423;  12  S.  11,  137 ;  16  S. 
426;  17  S.  106;  19  S.  328;  24  S.  389;  1  W.  N.  C.  336;  11  W.  N.  C.  217. 

Cited  by  the  Court,  10  N.  353;  s.  c.  9  W.  N.  C  138 ;  11  N.  90. 

As  to  the  question  of  evidence,  this  case  was  cited  in  6  Wh.  190,  and  dis- 
tinguished in  2  W.  350.  The  late  ca^es  on  distress  are,  6  N.  438 ;  7  N.  93 ; 
10  N.  349;  2  W.  N.  C.  371;  7  W.  N.  C.  64;  8  W.  N.  C.  533:  9  W.  N.  C. 
674. 


[SxTNBUKY,  Jttne  26, 1829.] 

Willard  against  Parker  and  Another. 

IN   ERROR. 

A  suit  cannot  be  maintained  by  the  supervisors  of  the  roads,  after  they 
have  gone  out  of  office,  against  the  county  treasurer,  upon  an  order  drawn  on 
him  by  the  commissioners,  in  favour  of  the  supervisors,  or  their  successors  in 
office. 

It  seems,  however,  that  if  the  supervisors  had  worked  upon  the  roads,  to  the 
amount  of  the  order,  or  had  paid  others  for  their  labour,  they  might  have  ac- 
quired such  an  interest  in  the  order  as  would  have  enabled  them  to  sustain  a 
suit  for  their  own  use. 

Where  the  treasurer  has  received  money  due  for  road  taxes,  he  is  bound  to 
pay  it  to  the  supervisors;  and  has  no  right  to  make  payments  in  county 
orders. 

The  mode  of  proceeding,  on  the  part  of  the  supervisors,  pointed  out  by  the 
fourth  section  of  the  act  of  the  6th  of  April,  1802,  prescribing  the  manner  of 
settling  their  accounts,  must  be  strictly  pursued. 

On  a  writ  of  error  to  the  Common  Pleas  of  Tioga  county,  it 
appeared,  that  this  was  an  action  of  assumpsit,  brought  by 
George  Parker  and  Samuel  Rathbone,  for  the  use  of  Samuel 
r*4.4Ql  *R^thbone,  against  William  Willard,  Jr.,  on  an  order, 
*-         -"of  which  the  following  is  a  copy  : 

"Commissioners'  Office,  Wilkesbarre,  May  17,  1825. — 
Pay  George  Parker  and  Samuel  Rathbone,  supervisors  of  Elk- 
land  township,  or  their  successors  in  office,  the  sum  of  one  hun- 
dred and  twenty-five  dollars  and  sixty-five  cents,  amount  of  the 
moneys  arising  from  road  tax,  in  said  township,  so  fast  as  the 
same  comes  into  your  hands,  for  the  year  1825. 

-» 
"  To  the  treasurer  of    f  William  Knox,  1      >-,        •    •  „ 

Tioga  county        j  Elijah   Styles;}     Commissioners.' 
David  Lindsey,  clerk. 
504 


June  25,  1S29J]     OF  PENNSYLVANIA.  449 

[Willard  v.  Parker  and  another.] 

When  the  order  was  drawn,  Knox  and  Styles  were  the  com- 
missioners of  Tioga  county ;  and  Parker  and  Rathbone,  the 
supervisors  of  Elkland  township  ;  but  the  plaintiffs  were  not 
in  office,  at  the  commencement  of  the  suit.  The  defendant 
was  the  treasurer,  and  received  the  money  arising  from  the 
road  tax,  for  Elkland  township,  for  the  year  1825.  This 
order,  with  others,  was  credited  to  the  amount  of  the  road 
tax,  for  that  year.  After  the  money  was  received,  it  was 
demanded  of  Willard  by  the  plaintiffs ;  and  Willard  offered 
to  pay  part  in  county  orders,  and  part  in  cash ;  which  was 
refused.  The  question  submitted  to  the  court,  was,  whether 
the  plaintiffs,  on  these  facts,  without  any  proof  of  an  express 
promise,  could  recover.  In  the  court  below,  the  plaintiffs  had 
judgment. 

Lewis,  for  the  plaintiff  in  error  said,  that  the  order  in  ques- 
tion, was  drawn  under  the  provisions  of  the  seventh  section  of 
the  act  of  the  6th  of  April,  1802,  Purd.  Dig.  721 ;  and  the 
first  section  of  the  act  of  the  30th  of  March,  1811,  Purd.  Dig. 
730,  which  require  the  treasurer  to  pay  the  money  received 
by  him,  for  road  taxes  to  the  supervisors,  for  the  time  being. 
The  order  was  not  private  property ;  and  was  not  the  foun- 
dation of  a  suit  by  the  supervisors  as  individuals.  After  their 
term  of  office  had  expired,  no  suit  could  be  maintained  by 
them,  because  the  interest  in  the  order  had  passed  to  their 
successors. 

Williston,  contra,  answered,  that  the  plaintiffs  below  had  set- 
tled for  this  order  with  the  auditors ;  and,  thus  it  had  become 
their  private  property. 

To  this  Le^ois  replied,  that  nothing  like  that  appeared  in  the 
record. 

The  opinion  of  the  court  was  delivered  by 

Rogers,  J. — It  is  contended,  that  the  plaintiffs  cannot  recover, 
because  the  suit  is  brought  for  the  benefit  of  one  of  the  supervi- 
sors ;  that  the  order  is  given,  to  them,  as  the  representatives  of 
Elkland  township,  and  to  their  successors,  and  that  they  ceased 
to  be  supervisors  before  the  commencement  of  the  suit.  In  this 
decision  we  do  not  wish  to  be  considered  as  commending  the 
conduct  of  *the  treasurer,  w^ho  it  is  apparent,  refused  to  r*4r;Ai 
pay  the  plaintiffs,  not  because  in  his  judgment,  they  *-  -^ 
were  not  the  proper  parties  to  receive,  but  because  they  would 
not  permit  him,  who  had  received  par  money  for  the  taxes,  to 
pay  them  in  depreciated  county  orders.     This  spirit  of  specula- 

505 


450  SUPREME  COURT  [Sunhwy, 

[Willard  v.  Parker  and  anotlier.] 

tiou,  at  the  expense  of  the  public  interest,  cannot  be  too  much 
condemned ;  and,  it  is  proper  that  it  should  be  discouraged  by 
the  court ;  nor  am  I  altogether  certain,  whether  the  conduct  of 
the  treasurer  has  not  subjected  him  to  an  indictment,  as  guilty 
of  a  high  misdemeanor  in  office.  If  we  are  governed  by  the 
face  of  the  order,  it  is  plain,  that  the  term  supervisors,  is  not 
merely  descriptive,  but  intended  as  a  designation  of  the  char- 
acter, in  which  they  are  to  be  entitled  to  the  money,  that  is,  in 
their  representative  character  of  supervisors  of  the  township. 
The  order  is  to  George  Parker  and  Samuel  Rathbone,  super- 
visors of  Elkland  township,  or  their  successors  in  office.  When, 
therefore,  they  ceased  to  be  supervisors,  their  interest  in  the 
order  also  ceased,  and  became  vested  in  their  successors.  And, 
whether  the  supervisors  of  the  township  be  a  corporation  or 
not,  does  not  matter,  as  suit  may  be  brought  (provided  suit  lies 
against  the  treasurer,  under  such  circumstances,)  in  the  name  of 
the  commissioners,  for  the  time  being;  who  would  describe 
themselves,  as  the  successors,  designirted  and  intended  in  the 
order.  No  person  can  believe  that  the  commissioners  intended 
to  vest  an  absolute  right  in  the  supervisors  to  the  money,  to  be 
applied  by  them  to  their  own  private  purposes,  without  regard 
to  their  public  duties.  The  order  was  drawn  in  strict  conformity 
to  the  first  section  of  the  act  of  the  30tli  of  March,  1811.  I 
will  not  say,  that,  if  the  supervisors  had  worked  on  the  roads, 
to  the  amount  of  the  order,  or  had  paid  others  for  their  labour, 
they  might  not  acquire  such  an  interest,  in  the  order,  as  to 
enable  them  to  sustain  suit  for  their  own  use ;  but  this  I  will 
not  suppose  without  proof.  The  supervisors  of  the  township, 
although  not  in  strictness  a  corporation,  yet,  for  certain  pur- 
poses, are  qiiasi  a  corporation ;  so  that  an  order  in  favour  of  the 
supervisors,  and  their  successors,  would  enable  the  successors  to 
sustain  suit,  in  their  own  name,  for  the  use  of  the  township. 
We  particularly  object  to  the  practice  of  using  township  orders 
for  private  purposes,  in  payment  of  the  private  debts  of  the 
supervisors,  or  for  goods  purchased  for  their  use.  In  every 
such  case,  we  consider  it  a  most  flagrant  abuse,  as  money,  where 
it  can  be  had,  should  be  received  from  the  treasurer,  whose  duty 
it  is,  under  the  first  section  of  the  act  of  the  30th  of  March, 
1811,  on  receiving  the  taxes,  or  any  part  thereof,  to  pay  over 
the  amount  to  the  supervisors,  who  shall  respectively  be  entitled 
to  the  same ;  with  which  it  is  their  duty  to  make,  open,  and  repair 
the  public  roads.  And  this  construction  may  prevent  abuses, 
without  any  injury  whatever  to  the  honest  supervisors  ;  for  the 
fourth  section  of  the  act  of  the  6th  of  April,  1802,  particularly 
prescribes  the  manner  of  settling  their  accounts.  At  the  election 
506 


June  25, 1S29.']      OF   PENNSYLVANIA.  450 

[Willard  v.  Parker  and  another.] 

for  choosing  supervisors,  the  *electors  are  required  to  r*4ci-| 
elect  four  capable  and  discreet  freeholders,  or  inhabitants  L  ^ 
to  settle  and  adjust  the  accounts  of  the  supervisors,  whose  time 
is  about  to  expire.  The  supervisors  are  required,  on  the  25th 
of  March,  yearly,  or  within  ten  days  thereafter,  to  produce  fair 
and  clear  accounts,  of  all  such  sums  of  money  by  them  received, 
&c.  And  the  freeholders  and  inhabitants  so  chosen,  &c.,  have 
full  power  to  adjust,  and  settle  such  accounts,  and  to  allow  such 
sums  and  charges,  as  they  may  think  reasonable.  And  the  sec- 
tion further  directs,  that,  if  there  shall  appear  to  be  any  money 
remaining  in  the  hands  of  the  supervisors,  they  shall,  by  order 
in  writing,  &c.,  direct  the  same  to  be  paid  to  the  succeeding 
supervisors ;  but,  in  case  they  shall  be  found  to  be  in  advance, 
&c.,  the  freeholders  are  required  to  give  an  order  to  reimburse 
the  same,  as  soon  as  a  sufficient  sum  of  money  shall  come  into 
their  hands.  This  section  clearly  points  out  the  mode  of  pro- 
ceeding, on  the  part  of  the  supervisors,  which,  it  is  the  opinion 
of  the  court,  should  be  strictly  pursued.  It  is  manifest  from 
this  act,  and  the  first  section  of  the  act  of  the  3d  of  April,  1804, 
the  legislature  intended  to  prevent  the  traffic,  which  appears  to 
have  taken  place  in  township  orders.  As  a  considerable  part  of 
the  money  arises  from  taxes  on  unseated  lands,  which  are  held 
by  nonresidents,  it  is  paid  in  par  money ;  and  this  the  treasurer 
is  bound  to  pay  over,  as  he  received  it,  to  the  supervisors,  to  be 
by  them  faithfully  expended  in  making,  opening,  and  keeping 
in  repair  the  public  highways.  The  presumption  is,  this  course 
was  pursued,  and  if  so,  the  supervisors,  by  producing  the  order, 
and  showing  the  money  had  not  been  received,  would  have  had 
an  allowance  to  that  amount,  and  it  would  have  been  their  duty 
to  deliver  over  the  order  to  their  successors  in  office ;  if 
they  were  in  advance,  &c.,  they  would  have  been  entitled  to 
an  order  on  their  successors,  who  would  have  been  bound  to 
reimburse  them  out  of  the  first  money  received. 

Judgment  reversed,  and  a  venire  facias  de  novo  awarded. 

Cited  by  Counsel,  8  W.  127  ;  3  C.  Ill ;  4  O.  299;  s.  c.  13  W.  N.  C.  293. 
Approved  and  followed,  3  E.  350. 


607 


452  SUPRElVrE  COURT  [Sunbury, 


[*452]  *[SirNBUKY,  June  25, 1829.] 

Gibson  against  Todd,  Administrator  of  Beale. 

IN  ERROR. 

An  action  on  a  judgment  obtained  by  husband  and  wife,  for  a  debt  due  to 
the  husband  in  his  own  right,  should,  after  the  death  of  the  husband,  be 
brought  in  the  name  of  the  wife,  as  surviving  plaintiff,  and  not  in  the  name 
of  the  administrator  of  the  husband.  But  the  court  will  protect  the  rights 
of  creditors,  and  others  who  are  shown  to  be  equitably  interested  in  the 
judgment. 

An  agreement  by  the  defendant,  with  the  husband  in  his  lifetime,  to  give 
him  credit  in  a  larger  debt,  which  he  had  against  him,  is,  if  executed,  an 
extinguishment  of  the  judgment;  and  if  not  executed,  it  is  not  a  reduction 
of  the  judgment  into  possession,  by  the  husband. 

If  the  plaintiff  omit  in  his  declaration,  to  aver  a  fact  essential  to  his  re- 
covery, and  the  defendant  demur  to  the  declaration,  the  plaintiff  cannot 
introduce  into  his  joinder  in  demurrer,  an  averment  of  such  fact.  The 
proper  course,  is  to  ask  leave  to  amend  the  declaration ;  which,  if  the  court 
grant,  they  will  at  the  same  time  permit  the  defendant  to  withdraw  or  insist 
on  his  demurrer. 

On  the  return  of  the  record  of  this  case  from  the  Court  of 
Common  Pleas  of  Mifflin  county,  it  appeared  that  Thomas  Todd, 
administrator  of  Thomas  Beale,  brought  an  action  of  debt  on  a 
judgment  obtained  by  Thomas  Beale  and  Elizabeth,  his  wife, 
against  David  Gibson,  the  plaintiff  in  error,  in  which  the  follow- 
ing declaration  was  filed  : — 

"And  whereupon  the  said  Thomas  Todd,  admini.strator  of 
Thomas  Beale  as  aforesaid,  comes  and  complains  of  the  said 
David  Gibson,  for  this,  that  heretofore,  to  wit,  on  the  8th  day 
of  February,  in  the  year  1819,  at  the  county  of  Mifflin,  iu  the 
Court  of  Common  Pleas  of  the  said  county,  then  and  there 
holden,  the  said  Thomas  Beale  and  Elizabeth,  his  wife,  for  a 
debt  due  to  the  said  Thomas  Beale  in  his  own  right,  by  the  con- 
sideration and  judgment  of  said  court,  recovered  against  the  said 
David  Gibson,  the  sum  of  one  hundred  and  seventeen  dollars 
and  thirty-two  and  a  half  cents,  of  debt,  together  with  thirteen 
dollars  and  fifty-nine  cents  of  cost,  in  the  whole  one  hundred 
and  thirty  dollars  ninety-one  and  a  half  cents  besides  the  ac- 
cruing costs  above  demanded,  which  in  and  by  the  said  court, 
were  then  and  there  adjudged  to  the  said  Thomas  Beale,  and 
Elizabeth  his  wife,  for  his  damages  which  he  had  sustained,  as 
well  by  reason  of  the  nonperformance,  by  the  said  David  Gibson, 
of  certain  promises  and  undertakings,  then  lately  made  by  the 
said  David,  to  the  said  Thomas,  as  for  his  costs  and  charges  by 
him  in  that  behalf  about  his  cause  expended,  whereof  the  said 
David  was  convict,  as  by  the  record  and  proceedings  thereof  re- 
508 


Jkne  25, 1829.]       OF   PENXSYLVANIA.  452 

[Gibson  v.  Todd,  Administrator  of  Beale.] 

maining  in  thecourt  at  Lewistown,  No.  43,  November  Term,  1818, 
more  fully  appears,  which  said  judgment  still  remains  in  full 
force  and  effect,  not  reversed,  satisfied,  or  otherwise  *va-  r*j^-o-i 
cated,  and  the  said  Thomas  Beale  in  his  lifetime,  or  the  L  J 
said  Elizabeth,  or  the  said  administrator  since  his  death,  hath 
not  obtained  any  execution  of  or  upon  the  said  judgment,  so 
rendered,  as  aforesaid.  Whereby  an  action  has  accrued  to  the 
said  Thomas  Todd,  administrator,  as  aforesaid,  to  demand,  and 
have  of  and  from  the  said  David  Gibson,  the  said  sum  of  one 
hundred  and  thirty  dollars  ninety-one  and  a  half  cents,  with 
interest  and  accruing  costs ;  yet  the  said  David  Gibson, 
although  often  requested,  hath  not  yet  paid  to  the  said  Thomas 
Beale,  or  Elizabeth  his  wife,  in  the  lifetime  of  the  said  Thomas, 
or  to  said  Elizabeth,  or  to  said  administrator  since  his  death, 
the  said  sum  of  one  hundred  and  thirty  dollars  and  ninety-one 
and  a  half  cents,  or  any  part  thereof,  but  heretofore  hath  re- 
fused, and  still  doth  refuse,  to  render  the  same ;  whereby  the 
said  Thomas  Todd,  administrator,  as  aforesaid,  saitli  he  hath 
damage  ten  dollars." 

An  additional  count  was  afterwards  filed  as  follows : — 
And  the  said  Thomas  Todd,  administrator,  as  aforesaid,  avers 
that  the  said  David  Gibson,  so  being  indebted  as  aforesaid,  to 
the  said  Thomas  Beale,  and  Elizabeth  his  wife,  for  the  amount 
of  the  judgment  and  costs,  as  aforesaid,  to  wit,  one  hundred 
and  thirty  dollars  and  ninety-one  and  a  half  cents,  and  by  vir- 
tue of  said  judgment,  on  the  8th  day  of  February,  1819,  at  the 
county  of  Mifflin,  and  it  was  then  and  there  agreed,. by  and  be- 
tween the  said  David  Gibson,  and  the  said  Thomas  Beale,  that 
whereas  the  said  Thomas  Beale,  was  indebted  to  the  said  David 
Gibson,  as  one  of  the  administrators  of  Thomas  Gibson,  in  a 
sum  greater  than  the  amount  of  the  debt  and  costs  so  due,  as 
aforesaid,  by  the  said  David  to  the  said  Thomas,  and  Elizabeth 
his  wife,  that  the  said  David,  should  and  would  allow  a  credit 
to  the  said  Thomas,  for  the  aforesaid  sum  of  one  hundred  and 
thirty  dollars  and  ninety-one  and  a  half  cents,  for  and  toward 
the  sum,  due  by  the  said  Thomas,  to  the  said  David,  and  one 
William  Gibson,  as  administrators  of  Thomas  Gibson,  for  the 
price  of  a  tract  of  land,  sold  to  said  Thomas  Beale,  by  the  said 
David  and  William  ;  whereby,  and  by  reason  of  which  premises, 
the  said  Thomas  Beale,  had  in  his  lifetime  reduced  the  said 
judgment,  for  one  hundred  and  thirty  dollars  and  ninety-one  and 
a  half  cents,  into  possession  ;  yet,  nevertheless  the  said  Thomas 
Todd,  administrator,  as  aforesaid,  avers  that  after  the  death  of 
the  said  Thomas  Beale,  the  said  David  Gibson,  fraudulently  in- 
tending to  deceive  and  injure  the  said  Thomas  Todd,  as  admin- 
istrator, of  the  said  Thomas  Beale,  neglected  and  refused  to 

609 


463  SUPREME  COURT  [Sunbury, 

[Gibson  v.  Todd,  Administrator  of  Beale.] 

give  credit  to  the  said  Thomas  Todd,  as  administrator  of  said 
Thomas  Bcale,  for  the  said  sum  of  one  hundred  and  thirty  dol- 
lars and  ninety-one  and  a  half  cents,  as  aforesaid,  on  account  of 
a  certain  debt  due  by  said  Thomas  Beale,  in  his  lifetime,  to  the 
said  David  Gibson,  and  one  William  Gibson,  administrators  of 
Thomas  Gibson,  in  part  of  the  price  of  a  tract  of  land  lx)ught 
by  the  said  Thomas  Beale,  in  his  lifetime,  of  the  aforesaid 
r*4^41  ^^^'^^  ^^^^  William  Gibson,  as  *administrators  of 
•-  J  Thomas  Gibson,  as  aforesaid,  whereby  and  by  reason 
of  which  premises,  the  said  judgment,.  No.  43,  of  November 
Term,  1818,  remains  wholly  due  and  unpaid,  to  wit,  the  sum 
of  one  hundred  and  thirty  dollars  and  ninety-one  and  a  half 
cents,  with  interest  from  the  8th  of  February,  1819,  and  which 
said  judgment  still  remains  in  full  force,  not  reversed,  satisfied, 
or  otherwise  vacated ;  and  the  said  Thomas,  administrator,  as 
aforesaid,  avers  that  the  said  Thomas  Beale,  in  his  lifetime,  or 
said  administrator  since  the  death  of  said  Thomas,  hath  not 
obtained  execution  of  the  said  judgment  against  the  said  David. 
Whereby  an  action  hath  accrued  to  the  said  Thomas  Todd,  ad- 
ministrator, as  aforesaid,  to  have  and  demand  of  and  from  the 
said  David  Gibson,  the  said  sum  of  one  hundred  and  thirty  dol- 
lars and  ninety-one  and  a  half  cents,  with  interest  and  accruing 
costs ;  yet,  nevertheless  the  said  David  Gibson,  although  often 
requested,  hath  not  yet  paid  the  same  to  the  said  Thomas,  in 
his  lifetime,  nor  to  the  said  Thomas,  administrator,  since  the 
death  of  the  intestate,  nor  in  any  way  satisfied  the  same,  but 
hitherto  hath  refused,  and  still  doth  refuse  to  pay  the  same,  to 
the  damage  of  the  said  Thomas,  administrator,  as  aforesaid,  ten 
dollars,  and  for  this  he  brings  suit,  &c. 

The  defendant  demurred  to  the  declaration,  and  assigned  •- 
for  causes  of  demurrer,  "  That  in  the  first  count  it  manifestly 
appears,  that  the  suit  upon  which  the  judgment  No.  43,  in  said 
declaration  mentioned  was  obtained,  was  brought  in  the  name 
of  Thomas  Beale,  in  his  lifetime,  and  Elizabeth  his  wife,  and 
the  said  Elizabeth  is  still  in  full  life,  and  has  survived  her 
said  husband  Thomas  Beale ;  and  -that  by  the  law  of'  the  land, 
the  interest  and  property  of  said  judgment,  and  all  moneys  due 
thereon,  became  and  are  vested  in  the  said  Elizabeth.  And 
also,  that  the  allegations  and  averments  in  the  second  count  of 
said  declaration,  do  not  prove  that  the  said  Thomas  Beale,  in 
his  lifetime  had  reduced  the  said  judgment.  No.  43,  to  his 
possession,  but,  on  the  contrary,  the  said  allegations  and 
averments,  in  the  second  count  of  said  declaration  mentioned, 
show,  if  they  show  anything,  that  the  said  judgment  was  sat- 
isfied." 

"  And  also  for  that  the  said  two  counts  are  inconsistent,  and 
510 


/Mn«25, 1829.]      OF  PENXSYLVANIA.  454 

[Gibson  v.  Todd,  Administrator  of  Beale.] 

set  forth  no  legal  causes  whereby  the  said  Thomas  Todd,  admin- 
istrator of  Thomas  Beale,  deceased,  is  entitled  to  recover  in  his 
suit.  And  that  the  said  declaration  is  in  other  respects  uncer- 
tain, informal  and  insufficient,  &c." 

The  plaintiff  filed  a  joinder  in  demiirrer  in  these  words  : — 
"  And  the  said  Thomas  Todd,  administrator  of  Thomas  Beale, 
comes  into  court,  and  avers  that  liis  intestate,  the  said  Thomas 
Beale,  died  insolvent,  not  having  sufficient  assets  real  or  per- 
sonal, to  pay  and  satisfy  his  just  debts,  and  the  said  plaintiff 
further  says,  that  the  matters  and  allegations  as  above  set  forth 
by  him  in  his  said  declaration,  are  good  and  sufficient  in  law  to 
enable  him  to  have  and  maintain  his  aforesaid  action  thereof 
against  the  said  David  Gibson.  And  of  this  he  prays  the 
judgment  of  the  court,  &c." 


[*455] 


*In  the  Common  Pleas  judgment  was  given  for  the 
plaintiff,  and  tiie  defendant  took  out  a  writ  of  error, 
which  was  argued  by  Hale,  for  the  j^laintiff  in  error,  who  cited. 
Arch.  PI.  274  ;  Co.  Litt.  304  ;  1  Fonb.  313 ;  2  Com.  D.  234  ; 
1  Vern.  396 ;  Cro.  Eliz.  6 ;  2  P.  Wms.  497  ;  1  Atk.  726. 

Fisher,  contra,  referred  to  2  Vern.  683. 

The  Qpinion  of  the  court  was  delivered  by 

Rogers,  J. — Equity  is  part  of  the  law  of  Pennsylvania ;  but, 
from  what  has  been  considered  by  some  a  defect  in  our  jurispru- 
dence, it  is  always  administered  through  the  medium  of  common 
law  forms.  Tiie  record  presents  a  case  of  a  joint  judgment,  on 
which  the  proper  remedy,  is  in  the  name  of  the  survivor,  the 
legal  owner,  whether  the  remedy  be  by  execution,  or  action  of 
debt,  or  a  scire  facias.  It  has  ever  been  held  a  decisive  objec- 
tion, that  suit  has  been  brought  in  the  name  of  the  equitable,  and 
not  the  legal  owner ;  for  it  has  always  been  considered  essential, 
to  preserve  the  forms  and  boundaries  of  actions,  which  are  not 
to  be  departed  from,  or  varied  witiiout  the  most  absolute  neces- 
sity. Glass  and  another  v.  Stewart,  10  Serg.  &  Rawle,  224. 
By  adopting  the  legal  form,  no  injustice  will  be  the  result,  and 
but  little  inconvenience,  as  the  court  will  take  care  to  protect  the 
interest  of  the  equitable  owner.  The  object  of  the  plaintiff  would 
seem  to  bo,  to  raise  the  question,  whether  the  wife  was  a  trustee 
for  the  creditors,  or  takes  the  avails  of  the  judgment  in  her  own 
right,  and  this  could  have  been  as  well  attained  by  a  suit  in  the 
name  of  the  wife,  for  the  use  of  the  administrators,  who  repre- 
sent the  creditors.  In  relation  to  the  merits,  we  take  the  rule 
to  be  this  :  when  a  husband  takes  a  joint  obligation  to  himself " 
and  wife,  for  a  debt  due  to  himself  alone,  it  is  a  gift  to  the  wife, 
who  takes  as  a  joint  purchaser,  and  by  survivorship,  and  in  her 

511 


456  SUPREME  COURT  [Swvbury, 

[Gibson  v.  Todd,  Administrator  of  Beale.] 

own  right,  unless  the  proceeds  should  be  wanted  on  a  deficiency 
of  assets,  for  the  payment  of  creditors  or  perhaj)s  legatees. 
Christ's  Hospital  v.  Budgin  and  Wife,  2  Vernon,  08'i,  The 
remedy  is  in  chancery,  which  grants  relief,  because  otherwise, 
the  husband,  by  joining  his  wife  in  the  security,  might  defraud 
his  creditors.  But  when  the  wife  is  the  meritorious  cause  of 
action,  as  in  the  case  of  a  bond  to  her  dum  sola  or  a  legacy,  and 
the  husband  joins  her  in  the  security  or  suit,  she  takes  by  survi- 
vorship, and  for  her  own  use,  although  there  may  not  be  assets 
without  this  money,  for  the  payment  of  debts  or  legacies.  And 
the  reason  of  the  distinction  is,  that  in  the  latter,  although  not 
in  the  former  case,  she  has  not  only  the  legal  title,  but  a  supe- 
rior equity,  and  the  invariable  principle  of  a  Court  of  Chancery, 
is  not  to  relieve  against  a  legal  title  where  the  respondent  has 
an  equal,  or  superior  equity.  The  Chancellor  simply  refuses  to 
interfere,  and  leaves  the  parties  to  their  legal  rights.  This 
always  supposes  that  the  husband  has  not  reduced  the  chose  in 
action  into  possession. 

Waiving  the  want  of  proper  parties,  we  will  next  consider  this 
V*A^(\~\  **^^^  o^  t^®  demurrer.  We  will  in  the  first  place  pre- 
L  -I  mise,  that  the  demurrer  admits  only  what  has  been  prop- 
erly pleaded.  The  plaintiflf  omits  to  aver  in  his  declaration  the 
insolvency  of  Beale,  and  this  we  have  seen  is  the  only  ground 
of  relief,  for  equity  interposes  only  in  favour  of  creditors  or  per- 
haps legatees,  2  Vern.  683 ;  and  non  constat,  that  the  assets 
may  not  be  abundantly  sufficient  to  answer  all  legal  demands  of 
creditors  and  legatees.  The  pleader  seems  to  have  been  aware 
of  this,  for  we  find  him  endeavouring  to  remedy  the  defect  in  his 
declaration,  by  an  averment  in  the  joinder  to  the  defendant's 
demurrer.  This,  to  say  the  least  of  it,  is  a  novel  procedure, 
and  was  intended  to  make  the  defendant  admit  by  the  demurrer, 
what  he  never  had  an  opportunity  of  traversing.  The  plaintiff, 
instead  of  concluding  with  a  verification,  which  he  is  bound  to 
do  when  he  avers  a  new  fact,  closes  the  pleading  by  praying 
judgment  of  the  court,  &c.  Having  discovered  the  slip  in  the 
pleading,  the  course  of  the  plaintiff  was  perfectly  plain,  by 
motion  to  the  court  for  leave  to  amend  his  declaration  ;  which, 
if  they  had  thought  proper  to  grant,  they  would  at  the  same 
time  have  permitted  the  defendant  to  withdraw  or  insist  on  his 
demurrer. 

The  plaintiff  further  avers  an  agreement  between  the  defend- 
ant and  Thomas  Beale,  in  his  lifetime,  that,  as  Thomas  Beale 
was  indebted  to  David  Gibson,  the  defendant,  one  of  the  admin- 
istrators of  Thomas  Gibson,  in  a  sum  greater  than  the  amount 
of  the  debt  and  costs  in  the  suit,  David  would  allow  a  cretlit  to 
Thomas  Beale,  for  the  sum  of  one  hundred  and  thirty  dollars 
612 


June  26,1829.]       OF  PENNSYLVANIA.  456 

[Gibson  v.  Todd,  Administrator  of  Beale.] 

and  ninety-one  and  a  half  cents,  in  part  payment  of  said  debt. 
This  allegation  is  made  for  the  purpose  of  showing  that  Thomas 
Beale,  in  his  lifetime,  reduced  the  judgment  into  possession. 
What  purposes  the  plaintiif  *s  counsel  expected  to  answer  by  this 
averment  it  is  difficult  to  conceive ;  for  as  the  demurrer  admits^ 
that  such  an  agreement  was  made,  if  it  had  been  executed,  it 
would  have  been  an  insurmountable  obstacle  to  the  plaintiff's 
recovery  ;  for  it  would  have  shown  that  the  judgment,  which  is 
the  foundation  of  the  suit,  was  extinguished  or  satisfied.  The 
plaintiff  avers  the  contract,  but  not  the  execution  of  the  con- 
tract, and  this  in  truth  he  could  not  do,  as  there  is  no  doubt  the 
contract  was  rescinded  by  the  defendant  in  refusing  to  give  the 
credit,  and  by  the  plaintiff  in  prosecuting  this  suit,  which  is  in 
disaffirmance  of  the  contract. 

Judgment  reversed. 

Cited  by  Counsel,  1  W.  &  S.  618 ;  4  W.  «&  S.  19 ;  8  W.  «fe  S.  119. 


*[SxJOTTJBY,  June  25,  1829.]  [*457] 

Mevay  against  Edmiston. 

IN   ERROR. 

An  action  for  the  penalty  given  by  the  act  of  the  28th  of  March,  1814,  for 
taking  illegal  fees,  may  be  arbitrated  under  the  act  of  the  20th  of  March,  1810. 

Writ  of  error  to  the  Court  of  Common  Pleas  of  Wifflin 
county,  in  an  action  of  debt,  brought  by  Mevay  against  Edmis- 
ton. to  recover  the  penalty  of  fifty  dollars  for  taking  illegal 
fees  as  sheriff.  The  suit  was  commenced  before  a  justice,  who 
gave  judgment  for  the  plaintiff.  The  defendant  appealed,  and 
entered  a  rule  of  reference  in  the  Court  of  Common  Pleas. 
The  arbitrators  found  in  favour  of  the  defendant,  and  the  court 
refused  to  set  aside  the  reference  and  report. 

Fisher,  for  the  plaintiff  in  error,  insisted,  that  the  arbitrators 
had  no  jurisdiction  of  the  cause,  and  cited.  Buck  waiter  v.  The 
United  States,  11  Serg.  &  Rawle,  193;  The  Commonwealth  v. 
The  Commissioners  of  Philadelphia  County,  8  Serg.  &  B-awle, 
151  ;  Respublica  v.  Cobbett,  2  Yeates,  352 ;  Reed  v.  Cist,  7 
Serg.  &  Rawle,  183. 

Wilson,  contra,  answered,  that  the  act  of  the  28th  of  March, 
VOL.  I.— 33  613 


487  SUPREME  COURT  [Sunbury, 

[MiBvay  V.  Edmiston.] 

1814,  under  which  this  action  is  brought,  places  the  forfeiture 
on  the  footing  of  any  other  debt,  as  regards  the  mode  of 
recovery.  He  cited  Prior  v,  Craig,  5  Serg.  &  Rawle,  44;  The 
Commonwealth  v,  Bennett,  16  Serg.  &  Rawle,  243. 

The  opinion  of  the  court  was  delivered  by 

Gibson,  C.  J. — A  criminal  prosecution,  whether  it  be  by 
indictment  or  action,  is  not  within  the  purview  of  the  com- 
pulsory arbitration  act ;  as  in  the  case  of  an  action  to  recover 
a  penalty  for  a  breach  of  the  revenue  laws.  Buckwalter  v.  The 
United  States,  11  Serg.  &  Rawle,  193.  On  the  other  hand,  an 
action  for  a  penalty  which  is  imposed,  not  to  punish  the  act  as 
an  offence,  but  to  compensate  the  party  aggrieved,  as  in  the 
case  of  a  penalty  for  omitting  to  serve  notice  of  the  meeting  of 
arbitrators,  which  is  strictly  a  private  injury,  may  be  referred 
at  the  option  of  either  party.  The  Commonwealth,  for  the 
use  of  Rogers,  v.  Bennett,  16  Serg.  &  Rawle,  243.  What  is 
the  character  of  taking  illegal  fees  in  violation  of  the  act  of 
the  28th  of  March,  1814?  The  fact  constituted  the  crime  of 
extortion  at  the  common  law  ;  but,  by  the  twenty-sixth  section, 
a  penalty  is  given  to  the  party  injured,  to  be  recovered  "  as 
debts  of  the  same  amount  are  recoverable ;"  from  which,  it 
would  seem,  that  the  legislature  intended  to  repeal  the  common 
law  as  respects  extortion  committed  in  violation  of  this  act ;  in 
other  words,  to  change  the  character  of  the  injury  from  a  public 
r*4^8l  *^  ^  private  *  wrong.  And  this  appears  the  more  satis- 
L  -I  factorily,  not  only  because  it  has  been  directed  in  a 
previous  law,  that  a  remedy  provided  by  statute  should  be 
pursued  in  exclusion  of  the  remedy  at  the  common  law,  but 
because  the  means  of  prosecution  are  put,  in  every  respect, 
expressly  on  the  footing  of  an  action  for  a  private  injury.  This 
.provision  alone,  then,  if  other  arguments  were  wanting,  would 
be  decisive  of  the  question ;  and  we  are  satisfied  that  the  refer- 
ence was  valid. 

Huston,  J.,  was  absent,  in  consequence  of  indisposition. 

Judgment  affirmed. 

Cited  by  Counsel,  8  W.  630 ;  12  S.  42 ;  6  N.  90. 


514 


June  26,1S29.]      OF   PENNSYLVANIA.  468 


[SuNBUBY,  June  25,  1829.] 

Wilbur  against  Strickland. 


m  ERROR. 


A  sheriff  is  answerable  for  the  conduct  of  his  deputy  in  taking  goods  of 
another  person  than  the  defendant  in  execution. 

After  evidence  of  a  fraudulent  combination,  the  declarations  of  any  one  of 
the  parties  to  it  may  be  proved. 

Error  to  the  Court  of  Common  Pleas  of  Bradford  county. 

This  action  of  trespass  was  brought  in  the  court  below  by 
Amos  Strickland,  claiming  to  be  owner  of  certain  goods,  which 
had  been  levied  on  by  a  deputy  of  Reuben  Wilbur,  the  sheriff 
of  the  county,  on  fieri  faeias  issued  against  John  B.  Farr,  at 
the  suit  of  Easou  Baily.  A  great  deal  of  testimony  was  given 
on  the  trial,  which,  from  the  clear  and  condensed  view  taken  of 
it  in  delivering  the  opinion  of  the  court,  it  is  unnecessary  here 
to  set  forth.  Two  points  were  made  in  arguing  the  writ  of 
error. 

Williston,  for  the  plaintiff  in  error,  suggested,  that  it  was  at 
least  doubtful,  whether  a  sheriff  was  answerable  for  the  acts 
of  his  deputy,  if  he  exceeded  his  delegated  authority ;  and 
quoted,  Bac.  Ab.  title  Sheriff,  443.  But  he  relied  more  strongly 
on  the  court  having  rejected  evidence  of  declarations  made  by 
Farr,  that  the  property  was  his  own ;  and  that  he  had  put  it 
into  the  possession  of  Strickland  to  place  it  beyond  the  reach 
of  his  creditors ;  which  evidence  was  offered,  after  ])rovnng  by 
a  number  of  witnesses,  that  Farr  was,  at  the  time  of  the  levy, 
and  for  a  long  time  before,  had  been,  in  the  sole  possession  of 
it,  and  had  exercised  various  acts  of  ownership  over  it.  After 
evidence  of  a  fraudulent  combination,  it  is  competent  to  prove 
the  declarations,  as  well  as  the  acts  of  any  of  the  persons  im- 
plicated in  the  fraud.  He  cited,  Babb  v.  Clemson,  10  Serg.  & 
Rawle,  426. 

Leims,  for  the  defendant  in  error,  on  the  first  point  quoted, 
2  Bl.  Rep.  832.  In  regard  to  the  second  question,  he  com- 
mented at  large  upon  the  evidence,  with  an  endeavour  to  show, 
that  combination  *and  fraud  were  not  proved ;  but  ad-  r^^cq-i 
mitted,  that  if  they  had  been  fully  and  clearly  made  to  ^         J 

515 


459  SUPREME  COURT  [Sunbwy, 

[Wilbur  V.  Strickland.] 

appear,  the  evidence  ought  to  liave  been  received.  He  cited 
under  this  head,  Wolf  v.  Carothers,  3  Serg.  &  Rawle,  240,  and 
Phoenix  v.  Ingraham's  Assignees,  5  Johns.  428. 

The  opinion  of  the  court  was  delivered  by 

Smith,  J. — The  defendant  in  error  brought  an  action  of  tres- 
pass in  the  Court  of  Common  Pleas  of  Bradford  county,  against 
Reuben  Wilbur,  the  plaintiff  in  error,  for  taking,  seizing,  and 
carrying  away  his  goods,  of  the  value  of  two  hundred  dollars. 
A  verdict  and  judgment  were  rendered  for  the  plaintiff  below ; 
and  in  the  course  of  the  trial,  it  appeared,  that  Reuben  Wilbur, 
the  defendant,  (while  sheriff  of  that  county,)  had,  (by  virtue  of 
a,  fieri  facias,  issued  upon  a  judgment  obtained  by  Eason  Baily 
against  John  B.  Farr,)  levied,  by  a  deputy,  on  personal  property, 
claimed  by  Amos  Strickland,  the  plaintiff.  The  deputation  from 
sheriff  Wilbur,  dated  on  the  26th  of  January,  1827,  was  to  exe- 
cute the  fieri  facias  at  the  risk  of  Eason  Baily,  plaintiff  in  the 
execution.  Amos  Strickland,  the  plaintiff,  offered  to  prove,  that 
the  deputy,  professing  to  act  under  the  authority  of  the  depu- 
tation and  execution,  committed  a  tres])ass  in  taking  his  prop- 
erty ;  to  which  offer  the  defendant  objected,  on  the  ground,  that 
as  the  deputation  was  a  special  one,  Reuben  Wilbur,  the  de- 
fendant, was  not  liable.  The  court,  however,  admitted  the  evi- 
dence, which  forms  the  first  bill  of  exceptions,  and  is  now 
assigned  for  error.  The  evidence  was  properly  admitted,  for 
it  has  been  settled,  that  if  on  a  fieri  facias  against  A.  a  bailiff 
takes  the  goods  of  B.,  trespass  lies  against  the  sheriff,  and  for 
this  I  refer  to  2  Bl.  Rep.  832,  and  Hazard  v.  Israel,  1  Binn. 
240.  See  3  Wils.  309,  and  Dougl.  40,  where  it  is  expressly  so 
decided.  For  all  civil  purposes,  the  sheriff  is  answerable  in  an 
action  of  trespass  for  the  conduct  of  his  deputy.  Indeed,  on 
the  argument,  the  counsel  for  the  plaintiff  in  error  did  not  press 
this  objection. 

The  plaintiff  below  claimed  the  property  in  question,  "  under 
a  transfer  to  him  from  John  B.  Farr,  and  as  security  to  him  for 
having  signed  an  obligation  with  John  B.  Farr  for  about  seventy 
dollars.  If  he,  Strickland,  should  have  to  pay  the  debt,  the 
property  to  be  his  absolutely ;"  and  he  alleged  that  he  did  pay 
it.  On  the  trial,  the  defendant  having  proved,  by  many  wit- 
nesses, that  John  B.  Farr  continued  in  possession  of  the  prop- 
erty ;  used  it  as  his  own  ;  repeatedly  said  it  was  his ;  exercised 
every  act  of  ownership  over  it ;  traded  with  the  horses  in  ]826  ; 
often  offered  to  trade  them  away ;  did  exchange  one  of  them ; 
and,  in  the  presence  of  the  plaintiff,  Strickland,  after  the  trans- 
fer, said  the  horses  were  his  own,  which  was  not  denied  by 
616 


June  26,1829.]      OF  PENNSYLVANIA.  459 

[Wilbur  V.  Strickland.] 

Strickland ;  and,  having,  moreover,  proved  by  Samuel  Roberts, 
that  John  B.  Farr  had  purchased  tlie  horses,  wagon,  and  har- 
ness, from  him,  some  time  before  the  sale,  or  transfer ;  further, 
offered  to  prove  by  Roberts, ''  that  when  he  let  John  *B.  r*4prv-i 
Farr  have  the  horses,  wagon,  and  harness,  Farr  said,  L  -• 
that  he  had  a  particular  friend  on  the  creek  in  whose  possession 
he  was  going  to  put  the  property,  to  keep  it  out  of  reach  of  his 
creditors,  and  that  that  friend  was  Amos  Strickland ;"  to  which 
offer  the  plaintiff's  counsel  objected,  and  the  court  sustained  the 
objection,  and  rejected  the  evidence.  This  is  now  also  assigned 
for  error.  In  Reitenbach  v.  Reitenbach,  at  the  last  May  Term, 
for  the  Lancaster  district,  this  court  decided,*  that  the  declara- 
tions of  a  party,  after  establishing,  or  proving  a  combination  to 
do  an  illegal  act,  are  not  only  evidence  against  the  party  making 
such  declarations,  but  are  also  evidence  against  all  others  of 
the  combination,  who  are  made  equally  responsible  for  the  con- 
sequences. In  principle,  then,  the  case  referred  to  is  decisive 
of  the  present.  We  think  the  evidence  ought  to  have  been  ad- 
mitted. It  would  have  been,  if  proved,  important  evidence  to 
show  how  the  matter  really  was,  and  it  was  calculated  to  prove 
in  what  character  the  goods  were  placed  in  the  possession  of 
Strickland.  It  is  true,  that  subsequent  declarations  by  a  party 
to  a  sale,  or  transfer  of  property,  which  go  to  take  away  a 
vested  right,  are  not  admissible  evidence.  But  this  is  not  the 
case  here ;  the  evidence  was  offered  to  show,  that  the  transfer 
to  Strickland  was  entirely  colourable,  fraudulent  and  void ;  and 
this  too,  after  the  defendant  had  proved,  by  a  host  of  witnesses, 
that  the  property  continued  with  John  B.  Farr,  nearly  in  the 
same  way,  at  least,  that  he  occupied  and  used  it  as  his  own, 
after,  as  before  the  sale,  and  that  he  exercised  over  the  property 
every  act  of  ownership  of  which  it  was  susceptible  ;  in  short, 
that  he  used  it  after  the  transfer  as  he  had  done  before.  Under 
such  circumstances,  the  evidence  was  certainly  competent,  and 
should  have  been  permitted  to  go  to  the  jury.  After  a  transfer 
of  personal  property,  the  possession  thereof  should  be  entirely 
and  exclusively  by  the  vendee,  and  should  be  given  up  to  him 
by  the  vendor;  ii  bona  fide,  the  vendee  becomes  the  true  owner, 
and  may  lend  or  give  it  to  whomsoever  he  pleases ;  but,  on  a 
contest  about  the  property,  it  would  become  a  question  for  the 
jury  to  say,  whether  the  transfer  was  bona  fide,  a  real  sale,  and, 
whether  by  it,  an  actual  change  of  property  had  been  made.  I 
refer  on  this  subject  to  5  Serg  &  Rawle,  275,  and  10  Serg.  & 
Rawle,  426.    But  on  the  authority  of  the  decision  of  this  court, 

*  Ante,  page  *362. 

617 


-(; 


i460  SUPREME  COURT  OF  PA.         [Sunlmry. 

[Wilbur  V.  Strickland.] 

in  Reitenbach  tu  Reiteubach,  aud  the  cases  there  cited,  we  are 
of  the  opinion,  that  the  declarations  of  John  B.  Farr  ought 
to  have  been  received  by  the  court,  and  that  the  judgment 
must,  for  this  reason,  be  reversed,  and  a  venire  facias  de  novo 
awarded. 

Judgment  reversed,  and  a  venire  facias  de  novo  awarded. 

Cited  by  Counsel,  3  Wh.  410 ;  9  W.  440 ;  14  Wright,  62 ;  5  S.  395. 


518 


INDEX. 


[References  are  to  the  top  paging.] 


ACTION. 

See  Arbitration.     Husband    and 
Wife,  2.    Sltervisors,  1,  2. 

1.  The  plaintiff  being  the  defendants' 
supercargo,  sold  their  goods  on  credit 
at  a  foreign  port,  and  procured  from 
a  house  at  that  port  advances,  on  an 
assignment  of  the  debts  due  from  the 
purchasers  of  the  cargo.  These  ad- 
vances he  remitted  to  his  shippers  in 
a  return  cargo.  In  his  account  of 
sales  of  the  outward  cargo  rendered 
to  one  of  the  shippers,  he  did  not 
mention  the  names  of  the  purchasers, 
but  concluded  it  with  "  errors,  omis- 
sions, and  outstanding  debts  ex- 
cepted." In  that  rendered  to  the 
other  shipper  he  mentioned  the 
names  of  tlie  purchasers,  and  con- 
cluded the  account  with  "  errors  and 
omissions  excepted."  The  purchasers 
having  become  insolvent,  the  foreign 
house  which  had  made  the  advances, 
attached  the  plaintiff's  property  and 
recovered  the  amount  of  their  ad- 
vances, and  the  plaintiff  brought  suit 
against  the  consignors  for  reimburse- 
ment. Held  that  he  was  entitled  to 
recover.  Elliott  and  others,  Executors 
of  Field,  V.  Walker  and  another,  Ad- 
ministrators of  Wilson,     ....  126 

2.  Lease  for  fifteen  years,  reciting  the 
intention  of  the  lessees  to  erect  a 
manufactory  of  cotton,  &c.  It  was 
covenanted  that  if  the  lessor,  his 
heirs,  or  assigns,  should  pay  to  the 
lessees  the  value  of  such  buildings 
as  they  should  erect,  first  giving  three 
years'  notice  of  the  intention  so  to  do, 
the  lease  should  expire  at  the  end  of 
fifteen  years;  otherwise  to  continue 
from  three  years  to  three  years,  until 
such  notice  and  payment  should  be 
made,  at  the  same  rent.  The  lessor, 
for  himself  and  his  heirs,  covenanted, 
at  his  and  their  cost,  to  keep  the  dam, 
race,  &c.,  in  good  repair.     The  value 


of  the  buildings  was  not  paid  to  the 
lessees.  The  lease  was  assigned,  and 
the  lessor  having  died,  after  having 
d-evised  the  reversion  of  the  prem- 
ises and  other  lands,  to  his  five 
children,  the  assignee  of  the  lease 
became,  by  different  conveyances, 
the  owner  of  three-fifths  of  the  re- 
version, in  fee.  The  dam  and  race 
being  out  of  repair,  and  the  executor 
of  the  lessor  not  having,  after  notice 
repaired  the  same,  the  assignee  ex- 
pended five  hundred  dollars  in  the 
necessary  repairs,  and  brought  an 
actiort  against  the  executor  of  the 
lessor,  to  reimburse  himself.  It  was 
agreed  that  the  breach  took  place 
after  the  death  of  the  lessor,  and 
while  the  plaintiff  wt\s  assignee  of 
the  lease,  and  owner  of  part  of  the 
reversion.  Held,  that  the  action 
could  not  be  maintained.  Keri<hmv 
V.  Supplee,      131 

3.  It  seems,  that  an  action  might  be 
maintained  against  the  two  devisees 
who  did  not  comply  with  the  cove- 
nant to  rejjair, Ibid. 

4.  Where  a  person  dies  intestate  leaving 
a  debt  or  debts  unpaid,  the  children 
of  such  intestate  cannot  maintain  a 
suit  for  any  part  of  his  estate,  or  the 
proceeds  thereof,  against  one  having 
the  property  of  such  intestate,  oi' 
holding  it  as  their  trustee ;  but  ad- 
ministration must  be  taken  out,  and 
the  debts  first  paid.  Lee  v.  Wri'/ht 
and  others,      140 

5.  If  a  person  intermeddle  with  the 
goods  of  an  intestate,  or  the  proceeds 
thereof,  and  act  as  executor  de  suii 
tort,  no  administration  being  taken 
out,  no  trust  can  be  raised  in  favour 
of  the  ciiildren  as  to  such  jn-operty, 
or  the  proceeds  thereof,  or  any  part 
of  the  same,  so  as  to  enable  them  to 
sue  for  such  property,  while  the 
creditors  of  the  estate  remain  un- 
paid,   Ibid. 

519 


620 


INDEX. 


6.  The  purchaser  at  a  sheriff's  sale,  of 
a  ground  rent  may  maintain  an  ac- 
tion of  covenant  for  the  rent,  against 
the  owner  of  tlie  ground  out  of  which 
it  issues.  Slreeper  v.  Fisher  and 
others 155 

7.  The  pendency  of  an  ejectment  for  a 
lot  of  ground  out  of  which  a  rent 
charge  issues,  brought  by  the  execu- 
tors of  a  testator,  will  not  prevent  a 
recovery  in  an  action  of  covenant  for 
the  rent,  by  his  devisees,  .    .    .  Ibid. 

ADMINISTRATION  ACCOUNT. 

1.  The  confirmation  of  an  administra- 
tion account,  like  any  other  decree 
of  the  Orphans'  (k)urt,  cannot  be  re- 
examined but  by  way  of  review. 
3I'Lenachan  and  Wife  v.  The  Com- 
monwealth,       357 

2.  But  the  parties  may  so  modify  the 
balance,  as  to  render  it  necessary  to 
unravel  the  account,  to  give  effect  to 
their  agreement, Ibid. 

3.  A  release  by  the  persons  beneficially 
interested,  to  one  administrator,  of 
everything  but  certain  parts  of  the 
estate  in  the  hands  of  the  other  ad- 
ministrator, which  are  specially  ex- 
cepted, is  valid,  and  is  to  be  carried 
into  effect,  according  to  the  intention 
of  the  parties ;  and  it  is  competent 
to  the  parties  interested,  to  give  ex- 
trinsic evidence  in  relation  to  the 
parts  excepted,  notwithstanding  the 
confirmation  of  the  administration 
account, Ibid. 

ADMINISTRATOR. 

See  Action,  4, 5.  Administration  Ac- 
count, 3.  Husband  and  Wife,  2. 

AGREEMENT. 

See  Covenant,  2,  4,  5,  6.    Husband 
AND  Wife,  3. 

1.  A  church,  being  in  embarrassed  cir- 
cumstances, borrowed  money  of  cer- 
tain banks,  for  which  two  of  its 
members  gave  notes  drawn  and  in- 
dorsed by  themselves.  The  banks 
having  required  further  security,  an 
agreement  was  entered  into,  by 
which,  upon  a  third  member  of  the 
congregation  consenting  to  become 
an  additional  indorser  upon  the 
notes,  thirty  others  bound  them- 
selves, in  default  of  payment  being 


made  by  the  church,  to  make  good 
the  deficiency,  so  that  the  drawers 
and  indorsers  of  the  notes  should  not 
suflier  lo&s,  provided  the  said  drawers 
and  inrlorsers  should  continue  their 
names  on  the  notes  to  the  end  of  the 
time  required  for  the  payment  of  the 
debt,  which  it  was  stipulated  should 
be  paid  off'  in  ten  years,  by  annual 
instalments  of  ten  per  cent. ;  and  in 
case  the  church  should  make  default 
in  paying  these  instalments,  the  sub- 
scribers to  tlie  contract  agreed,  that 
the  deficiencies  should  be  divided 
among  them  in  equal  parts.  The 
notes  were  regularly  renewed,  from 
time  to  time,  until  the  death  of  the 
last  indorser,  which  took  place  a  few 
years  after  the  date  of  the  agreement. 
After  his  death,  his  executors  were 
called  upon  by  a  committee  of  tlie 
church  to  renew  the  notes,  wliich 
the  banks  would  have  permitted 
under  the  circumstances  of  the  case. 
The  executors,  however,  refused  to 
renew,  suffered  the  notes  to  be  pro- 
tested, and  afterwards  paid  them. 
After  the  lapse  of  several  years,  they 
brought  this  action  against  the  de- 
fendant, as  one  of  the  thirty  who  had 
signed  the  agreement  of  indemnity, 
to  recover  his  proportion  of  the  in- 
stalments of  ten  per  cent.,  which  had 
become  due  prior  to  the  commence- 
ment of  the  action.  Held,  that  they 
had  substantially  complied  with  the 
contract  of  their  testator,  and  were 
entitled  to  recover.  Shields  and 
others,  Executors  of  Shields,  v.  Owens. 

61 

AMENDMENT. 

See  Court,  3. 

An  amendment  of  the  declaration  may 
be  permitted  on  a  second  trial,  after 
the  reversal  of  a  former  judgment. 
Lee  V.  Wright  and  others,    ..    .    .  149 

ANCIENT  DEED. 

See  Evidence,  1,  3. 

APPEAL. 

On  an  appeal  from  a  justice  of  the 
peace,  though  the  form  of  the  suit 
may  be  sometimes  changed,  yet  the 
cause  of  action  must  be  the  same  as 
before  the  Justice.  GaldvxU  v. 
Thompson, 370 


\ 


INDEX. 


521 


APPOINTMENT. 

See  Power. 

APPRENTICE. 

1.  The  sister  of  a  minor  is  competent, 
under  tlie  act  of  Assembly  of  the  29th 
of  September,  1770,  to  assent,  as  his 
next  friend,  to  binding  him  appren- 
tice to  her  own  husband.  The  Com- 
monweallh,    ex   rel.  Taylor,  v.  Leeds, 

191 

2.  But  such  a  transaction  will  be  more 
strictly  scanned  than  where  the  bind- 
ing is  to  a  stranger ;  and  if  the  con- 
tract be  tainted  with  fraud  or  collu- 
sion, the  apprentice  will  be  dis- 
charged,   Ibid. 

3.  He  will  not,  however,  be  discharged 
of  course,  where  tlie  covenants  ap- 
pear to  be  reasonable  and  proper  on 
the  face  of  the  indenture,  especially 
where  the  application  is  not  made 
till  the  apprentice  has  ceased  to  be 
a  burden, Ibid. 

ARBITRATION. 

An  action  for  the  penalty  given  by 
the  act  of  the  28th  of  March,  1814, 
for  taking  illegal  fees,  may  be  arbi- 
trated under  the  act  of  the  20th  of 
March,   1810.     Mevay  v.  Edmiston, 

457 

ARBITRATORS. 

It  is  competent  to  prove  by  the  oath  of 
arbitrators,  that  certain  matters  were 
not  examined  or  acted  upon  by  them, 
and  that  consecjuently  they  had  made 
a  mistake  in  their  award.  Hoop  v. 
Brubaeker, 304 

ASSIGNEE. 
See  Judgment,  2.    Set-off,  1. 

ASSIGNMENT. 
See  Husband  and  Wife. 

1.  Though  an  assignment  be  in  its 
nature  calculated  to  delay  creditors, 
and  therefore  voidable,  yet,  if  a 
creditor  take  a  dividend  under  it,  he 
cannot  afterwards  question  its  va- 
lidity.    Adlum  V.  Yard,  ....  163 

2.  The  lapse  of  seventeen  years,  with- 
out corroborating  circumstances,  is 
too  short  a  time  to  raise  a  legal  pre- 


sumption, that  the  objects  for  which 
an  assignment  was  made  for  the 
benefit  of  creditors,  had  either  been 
accomplished  or  abandoned,  .  Ibid. 
3.  If  an  assignment  be  made  for  the 
benefit  of  such  creditors  as  shall 
execute  a  release  within  a  given 
time,  one  to  whom  a  debt  is  actually 
due,  and  who  releases  within  the 
time,  but  afterwards  takes  up  notes 
drawn  and  indorsed  by  liim  for  the 
accommodation  of  the  assignor,  is  not 
entitled  to  a  dividend  of  his  estate 
upon  the  notes  thus  taken  up.  Stod- 
dart  V.  Allen, 258 

ASSIZE  OF  NUISANCE. 

1.  A  writ  of  habere  facias  seisinam,  is 
not  the  proper  form  of  execution  in 
an  assize  of  nuisance.  Barnet  v.  Ihrie, 

44 

2.  It  seems,  that  a  distringas  to  compel 
the  defendant  himself  to  abate  the 
nuisance,  is  the  proper  writ,    .  Ibid. 

3.  An  execution,  for  costs  not  allowed 
by  law,  may  be  reversed  on  a  writ 
of  eri'or, Ibid. 

4.  What  costs  are  allowable,  and  what 
are  not,  in   an   assize  of  nuisance, 

Ibid. 

ATTACHMENT,  FOREIGN. 

If,  on  the  trial  of  a  scire  facias  against 
a  garnishee  in  a  foreign  attachment, 
the  plaintifl[  read  the  answers  of  the 
defendant  to  the  interrogatories  ex- 
hibited to  him  on  the  part  of  the 
plaintiff,  he  may,  notwithstanding, 
contradict  those  answers,  by  show- 
ing, that  the  defendant  swore  differ- 
ently on  another  occasion.  Adlum 
v.Yard, 163 

AWARD. 

See  Arbitrators. 

BILL  OF  LADING. 

See  Stoppage  in  Transitu. 

The  master  of  a  vessel  arriving  at  the 
port  of  Philadelphia  from  a  foreign 
port,  is  not  bound,  by  the  bill  of 
lading,  to  deliver  the  goods  person- 
ally, to  the  consignee.  The  liability 
of  the  ship  owner  ceases  when  the 
goods  are  landed  at  the  usual  wharf. 
Cope  and  others  v.  Cordova,     .    .  203 


622 


INDEX. 


BOND. 

See  Set-off,  1. 

A  bond  in  which  the  obligors  declare 
themselves  to  be  jointly  held  and 
firmly  bound  to  the  obligee,  in  the 
sum  of,  Ac,  to  which  payment  they 
bind  themselves,  their  heirs,  execu- 
tors, and  administrators,  and  every 
of  them,  is  a  joint,  and  not  a  joint 
and  several  bond.  Moser  v.  Liben- 
guth  and  another,  Administrators  of 
lAbenguth, 255 

CERTIORARI. 

1.  On  a  certiorari^  from  this  court  to 
the  Orphans'  Court,  to  remove  the 
record,  the  original  record  must  be 
returned.     Torres  Appeal      ...  76 

2.  A  writ  of  error,  and  not  a  certiorari, 
is  the  proper  remedy  for  the  correc- 
tion of  errors  in  the  Court  of  Common 
Pleas,  in  a  case  brought  into  that 
court  on  a  certiorari,  to  remove  the 
proceedings  of  two  aldermen,  or  jus 
tices  of  the  peace,  under  the  act  of 
the  6th  of  April,  1802,  "to  enable 
purchasers  at  sheriff's  or  coroner's 
sales  to  obtain  possession."    Cooke  v. 

.  Heinhart,  317 

3.  But  after  the  lapse  of  two  terms,  it 
is  too  late  to  move  to  quash  the  cer- 
tiorari,   Ibid. 

CHARGE. 
See  Will,  1,  2. 

CHOSE  IN  ACTION. 
See  Husband  and  Wife. 

CIRCUIT  COURT. 

A  writ  of  error  does  not  lie  to  the 
Circuit    Court.     Wike   v.   lAghtner, 

289 

CONSIGNOR  AND  CONSIGNEE. 

See  Stoppage  in  Transitu.    Bill 
OF  Lading. 

CONSTITUTION. 

The  act  of  the  29th  of  March,  1819,  sup- 
plementary to  the  act  of  the  2d  April, 
1811,  incorporating  the  Union  Canal 
Company  of  Pennsylvania,  does  not 


violate  the  10th  section  of  the  Ist  ar- 
ticle of  the  Constitution  of  the  United 
States.  mitrenzelJer  v.  The  Union 
Canal  Company, 181 

COSTS. 
See  Assize  of  Nuisance,  3,  4, 

1.  Where  the  plaintiff  removed  the 
cause  to  the  (Ircuit  Court,  and  re- 
covered less  than  one  hundred  dol- 
lars, and  offered  no  evidence  to  prove 
a  demand  exceeding  five  hundred 
dollars,  and  it  was  apparent  that 
under  the  circumstances  of  the  case 
none  could  be  offered,  the  court  or- 
dered the  plaintiff  to  pay  the  costs. 
Hoop  V.  Brubacker, 304 

2.  Where  the  plaintiff,  suing  before  a 
magistrate,  has  a  judgment  given 
against  him,  from  which  he  appeals, 
and  the  cause  being  then  arbitrated, 
an  award  is  given  in  favour  of  the 
plaintiff,  for  which  the  defendant  ap- 
peals, and  on  the  trial  in  court,  a  ver- 
dict is  given  in  favour  of  the  defend- 
ant ;  the  defendant  is  entitled  to  the 
costs  of  the  arbitration,  and  also,  to 
the  subsequent  costs  in  court.  Gon- 
zalna  v.  Liggitt, 426 

COURT. 
See  Ejectment,  6.    Fraud,  1. 

1.  It  is  the  duty  of  the  court  to  answer 
fully  the  points  upon  which  they  are 
requested  by  counsel  to  charge  the 
jury.  But  it  is  not  necessary  that 
they  should  answer  the  propositions 
submitted,  in  the  very  words  of  the 
propositions.  It  is  enough  if  the  an- 
swers be  sufficiently  full  to  be  tmder- 
stood.     Oeiger   v.  Welsh  and  others, 

349 

2.  Nor  is  it  necessary,  where  the  same 
proposition  is  repeated,  though  in 
diflerent  words,  to  answer  every  rep- 
etition of  it.  One  full  answer  is 
enough, Ibid. 

3.  Where  it  is  alleged,  that  the  tran- 
script returned  to  the  Common  Pleas, 
does  not  conform  to  the  justice's 
docket,  which  is  alleged  to  be  erro- 
neous, and  an  application  is  made 
for  leave  to  amend  the  docket  by  the 
transcript,  the  court  below  are  to  de- 
termine, upon  inspection  of  the 
docket,  and  all  the  papers  and  evi- 
dence before  them,  what  are  the  true 


INDEX. 


523 


words  of  the  record ;  and  if  they  re- 
fuse the  amendment,  this  court  will 
not,  for  that  reason,  reverse  the  judg- 
ment.    Caldwell  v  Thompson,     .  370 

4.  A  court,  in  submitting  presumptive 
evidence  to  the  jury,  may  give  its 
opinion  on  the  weight  of  the  testi- 
mony, but  cannot  preclude  the  jury 
from  deciding  for  themselves.  Wil- 
liams, Executor  of  Pennock,  v.  Carr  and 
another, 420 

5.  The  party  who  requests  an  opinion 
from  the  court,  on  the  effect  of  testi- 
mony, cannot  assign  for  error  a  com- 
pliance with  his  request,  .    .    .  Ibid. 

CX)UET  OF  APPEAL. 
See  Militia. 

COVENANT. 

See  Action,  2,  3,  6,  7.     Marriage 

Settlement. 

1.  Where,  in  a  deed  conveying  land 
and  reserving  a  rent  charge,  the 
grantor  covenants,  upon  the  grantee 
paying,  within  seven  years,  a  gross 
sum,  together  with  all  arrearages, 
&c.,  to  release  and  discharge  the 
rent,  the  grantee  cannot,  after  the 
lapse  of  eighteen  years  from  the  time 
prescribed  in  the  deed,  call  upon  the 
grantor  to  perform  his  covenant. 
Shoemaker's  Petition, 89 

2.  The  covenants  raised  by  the  words 
grant,  bargain,  and  sell,  by  force  of 
the  act  of  Assembly  of  the  28th  of 
May,  1715,  are  not  applicable  alone 
to  deeds  executed,  but  extend  to  ar- 
ticles of  agreement  for  the  convey- 
ance of  land.  Sei(zin(jer,  Adminis- 
trator of  Stroheckcr,  v.  Weaver,  Admin- 
istrator of  Grant, 377 

3.  The  words  grant,  bargain,  and  sell, 
do  not  create  a  covenant  of  special 
warranty,  running  with  the  land  and 
broken  only  by  eviction.  The  act 
intended  to  give  to  the  vendee  the 
benefit  of  two  distinct  covenants;  a 
covenant  of  seisin  as  regards  defeasi- 
bility  from  the  acts  of  the  vendor, 
and  a  covenant  for  quiet  enjoyment 
against  disturbance  by  the  vendor, 
and  those  claiming  under  him  ;  and 
the  covenant  of  .seisin  is  broken  by 
the  existence  of  an  incumbrance 
created  by  the  vendor,  the  instant  it 
is  sealed  and  delivered,     .        .  Ihid. 

4.  The  previous  sale  of  part  of  the  land 
by  articles  of  agreement,  is  an  in- 


cumbrance on  the  legal  estate,  which 
renders  it  defeasible  in  the  hands  of 
the  subsequent  vendee,  who  may, 
therefore,  maintain  an  action  to  re- 
cover back  the  purchase-money, 

Ibid. 

5.  Where  A.  entered  into  articles  of 
agreement  to  convey  lands  to  B.,  who 
paid  a  small  portion  of  the  purchase- 
money,  after  which  A.  died,  without 
having  executed  a  conveyance,  but 
leaving  a  will,  by  which  he  empow- 
ered his  executors  to  sell  for  the 
payment  of  debts  and  education  of 
children,  and  B.  took  no  steps  to 
have  the  title  completed,  but  C,  B.'s 
father-in-law,  and  D.  his  father,  paid 
the  residue  of  the  purchase-money, 
and  received  from  the  executors  of 
A.  a  conveyance  for  the  land,  which 
they  afterwards  divided  between 
them :  held,  that  a  suit  could  not  be 
maintained  upon  the  covenants  cre- 
ated by  the  words  grant,  bargain, 
and  sell,  in  the  agreement,  in  the 
name  of  B.  for  the  use  of  C.,  to  re- 
cover back  part  of  the  purchase- 
money,  in  consequence  of  the  exist- 
ence of  an  incumbrance  previously 
created  by  A.,  by  which  the  title  of 
C.  to  part  of  the  land  was  defeated. 
Nor  can  B.  in  such  an  action,  re- 
cover back  that  part  of  the  purchase- 
money  which  he  had  paid  to  the 
testator, Ibid. 

6.  The  presumption  of  law  is,  that  the 
acceptance  of  a  deed  in  pursuance 
of  articles  of  agreement,  is  satisfac- 
tion of  all  previous  covenants;  and, 
although  there  may  be  cases  in 
which  such  acceptance  is  but  a  part 
execution  of  the  contract,  yet,  to  re- 
but the  legal  presumption,  the  in- 
tention to  the  contrary  must  be  clear 
and  manifest, .  Ibid. 

DAMAGES. 

1.  In  an  action  for  overflowing  the 
plaintiff's  land,  by  the  erection  of  a 
dam  on  the  land  of  the  defendant,  in 
which  the  nature  and  extent  of  the 
alleged  injury  are  specially  described 
in  the  declaration,  the  plaintiff  is 
entitled  to  a  verdict  for  nominal 
damages,  though  he  fail  to  prove  the 
particular  injury  complained  of,  or 
any  other  actual  injury  I'adorius 
V.  Fisher,      27 

2.  An  injury  to  the  grantor's  mill-race, 
is  an  injury  to  his  mill,  for  which  he 


524 


INDEX. 


is   entitled    to 
iArie, 


Buiz  V. 
.   .218 


DECLARATION. 
See  Deuubkeb. 

DEED. 
See  Covenant,  2.     Puechaser,  2,  3. 

DEFALCATION. 
See  Set-off. 

DEMURRER. 

If  the  plaintiff  omit  in  his  declaration, 
to  aver  a  fact  essential  to  liis  re- 
covery, and  the  defendant  demur  to 
the  declaration,  the  plaintiff  cannot 
introduce  into  his  joinder  in  de- 
murrer, an  averment  of  such  fac^. 
Tlie  proper  course,  is  to  ask  leave  to 
amend  the  declaration ;  which,  if  the 
court  grant,  they  will  at  the  same 
time  permit  the  defendant  to  with- 
draw or  insist  on  his  demurrer. 
Gibs  '71  V.  Todd,  Administrator  of 
Beetle, 452 

DEMURRER  TO  EVIDENCE. 
See  Paktnebs,  1. 

1.  Though,  on  a  demurrer  to  evidence, 
judgment  will  not  be  given  if  the 
declaration  set  forth  an  illegal  cause 
of  action,  or  no  cause  of  action,  yet  it 
waives  all  objections  merely  formal ; 
and  what  would  be  cured  by  a  ver- 
dict, is  cured  by  a  demurrer  to  evi- 
dence, ialdwell,  Administrator  of 
Caldwell,  surviving  partner  of  Holmes, 
V.  StUeman, 212 

2.  Where  there  is  a  demurrer  to  parol 
evidence,  of  a  fact,  which  is  not  evi- 
dence of  any  other  fact,  but  itself  a 
substantive  ingredient  of  the  case,  a 
party  may  be  requii^ed  to  join  in  de- 
murrer.    Crawford  V.  Jackson,    .  427 

3.  On  a  demurrer  to  parol  evidence,  if 
the  plaintiff  refuses  to  join  in  de- 
murrer, except  on  terms  which  the 
court  disapproves,  the  plaintiff's  evi- 
dence must  be  considered  as  with*- 
drawn,  and  the  jury  must  find  a  ver- 
dict for  the  defendant,      .   .    .  Ibid. 


DEPUTY  SURVEYOR. 

See  Evidence,  8,  9. 

DISCONTINUANCE. 

1.  A  power  of  attorney  to  the  prothono- 
tary  to  discontinue  a  suit,  cannot  be 
executed  by  his  clerk.  I%e  Mechanic^ 
Bank  v.  Fisher, 341 

2.  A  plaintiff  will  not  be  permitted  to 
discontinue,  where  it  will  give  him 
an  advantage,  or  tend  to  vex  and  op- 
press the  defendant, Ibid. 

3.  Therefore,  where  the  plaintiff,  resid- 
ing in  Philadelphia,  brought  suit  in 
Dauphin  county,  and  the  defendant 
took  out  a  rule  of  arbitration,  and 
went  to  Philadelphia  to  serve  it  on 
the  plaintiflj  who  immediately  sent 
a  power  of  attorney  to  the  prothono- 
tary  of  Daupliin  county  to  discon- 
tinue the  suit  there,  and  sued  the 
defendant  again  in  Philadelphia, 
notwithstanding  which,  arbitrators 
were  appointed  in  Dauphin  county, 
who  proceeded  to  make  an  award 
in  favour  of  the  defendant ;  against 
which  proceedings,  the  attorney  of 
the  plaintiff  protested,  and  applied 
to  the  judge  of  the  Circuit  Court  to 
set  them  aside,  who  did  so :  held,  on 
an  appeal,  that  the  discontinuance 
was  improper,  and  the  proceedings 
subsequent  to  it  valid,  ....  Ibid. 

DISTRESS. 
See  Landlord  and  Tenant,  4, 5, 7, 9. 

DISTRINGAS. 

See  Assize  of  Nuisance,  2. 

EJECTMENT. 

See  Heir.  Lease.  Sheriff's  Sai.e,  3. 
Witness,  4. 

1.  Though  the  conditions  of  sale  are 
not  essential  to  support  an  ejectment 
by  the  sheriff's  vendee,  yet  being 
part  of  the  res  gestae,  they  are  admis- 
sible in  evidence.  Arnold  <  nd  another 
V.  Gorr  and  on  "ther, 223 

2.  An  undisturbed  jiossession  of  twenty- 
four  years  before  bringing  the  action, 
is  sufficient  to  enable  the  plaintin 
to  recover  in  ejectment.  Jnnis  and 
others  v.  Campbell  and  others,  .    .  373 


INDEX. 


525 


3.  An  ejectment  may  be  commenced  on 
a  strict,  legal  title,  and  the  plaintiff 
may  rebut  a  countervaiiing  equity, 
set  up  by  the  defendant,  on  the  trial. 

Ibid. 

4.  If  incumbrances  exist,  they  may  be 
valued  and  allowed  for  by  the  jurv. 

Ibid. 

5.  The  court  inclined  to  think,  that 
paupers  supported  by  the  township, 
might  unite  with  the  overseers  of  the 
poor  in  an  ejectment ;  but  at  any  rate 
refused  to  grant  a  new  trial  on  that 
ground.  Ripple  and  others  v-  Hippie 
and  others, ...  386 

6.  The  admission  of  a  party  claiming 
right  to  defend  in  ejectment  as  land- 
lord, under  the  ninth  section  of  the 
act  of  the  21st  of  March,  1772,  is  an 
act  of  the  court,  whose  duty  it  is  to 
inquire  before  making  the  order, 
whether  the  applicant  really  stands 
in  the  relation  of  landlord,  or 
whether  his  claim  of  title  is  con- 
sistent with  the  possession  of  the 
occupier.     M'  Clay  v.  Benedict,  .  424 

ERKOR. 

See  Assize  of  Nuisance,  3. 
Court. 

ESTOPPEL. 
See  Sheriff,  3. 

1.  There  is  no  estoppel  but  between  the 
parties  to  a  deed.     Lunger  v.  FdUm, 

141 

2.  Those  who  take  an  estate  under  a 
defective  conveyance,  are  estopped 
from  denying  its  validity.  Ripple  and 
others  v.  Ripple  and  others,  .    .    .  386 

EVIDENCE. 

See  Arbitrators.  Attachment, 
Foreign.  Couh-t,  4,  5.  Eject- 
ME.;  r,  1.  Limitation,  Act  of,  2. 
Landlord  and  Tenant,  9.  Mili- 
tia, 2,  3.    Witness. 

1.  An  exemplification  of  a  deed  dated 
the  23d  of  June,  1696,  acknowledged 
in  open  court  on  tlie  4th  of  August, 
1696,  and  recorded  the  27th  of  Octo- 
ber, 1740,  held,  to  be  admissible  in 
evidence,  the  orii;inal  deed  having 
been  lost.  Dnffield  and  others  v. 
Brindley  and  others, 91 

2.  An  entry  made  by  a  clerk  in  a  book 


of  a  bank,  of  a  deposit  made  by  a 
customer,  immediately  before  an  en- 
try made  by  him  of  the  same  deposit, 
in  the  customer's  bank  book,  and 
supported  by  the  oath  of  the  clerk,  is 
evidence  to  go  to  the  jury,  together 
with  the  customer's  book  and  the 
testimony  of  the  clerk.  The  Far- 
mers' and  Mechanic^  Bank  v.  Bo- 
raef, 152 

3.  An  ancient  deed  which  has  not  ac- 
companied the  possession,  is  not  ad- 
missible in  evidence  without  proof  of 
its  execution.  Arnold  and  another 
V.  Oorr  and  another, 223 

4.  The  record  of  a  judgment,  sheriff's 
sale  thereon,  sheriff's  deed,  and 
mesne  conveyances  to  the  party  offer- 
ing them,  are  not  evidence,  where  no 
interest  in  the  land  sold  by  the  sher- 
iff, is  shown  in  the  defendant  in  the 
judgment, Ibid. 

6.  In  an  action  on  a  recognisance  en- 
tered into  in  partition,  in  which  the 
plea  is  a  release,  and  the  replication, 
that  the  release  was  without  consid- 
eration, fraudulent,  'and  void,  evi- 
dence is  not  admissible  under  the 
replication,  to  show  that  though  the 
release  was  expressed  to  be  for  a  full 
consideration,  none  was  paid ;  and 
that,  to  induce  the  releasors  to  exe- 
cute the  instrument,  the  releasee 
artfully  and  fraudulently  represent- 
ed, that  if  they  would  execute  it  he 
would  pay  them  afterwards,  and  that 
the  administrators  of  the  relejisee 
retained  in  their  hands  money  to 
meet  the  claim  of  the  releasors. 
!Z'Ae  Commonwealth,  for  the  use  of 
Mhhey  and  others,  v.  Brenneman  and 
another,  Administrators  of  Brenne- 
man,     311 

6.  Nor  is  evidence  admissible  to  show, 
(where  third  persons  are  interested,) 
that  the  release  was  induced  by  the 
purchaser  of  the  share  of  one  of  the 
heirs  refusing  to  pay  without  a  re- 
lease from  all  the  heirs:  That  they 
agreed  to  meet  his  wishes,  upon  his 
paying  only  the  purchase-money  of 
the  share  he  had  bought.  J'hat  there 
was  an  understanding  among  the 
heirs,  that  the  release  was  to  operate 
only  in  favour  of  the  purchaser ;  and 
that  among  themselves,  though  ab- 
solute in  form,  it  was  to  remain  in- 
operative until  tliose  who  took  the 
land  at  the  appraisement,  paid  to 
each  of  the  heirs  their  share  of  the 
valuation  money, Ibid. 


626 


INDEX. 


7.  On  a  general  allegation  of  misrep- 
resentation and  fraud,  a  party  may 
be  compelled  to  specify  the  evidence 
on  which  he  relies  to  establish 
fraud, Ibid. 

8.  Though  the  acts  of  a  deputy  sur- 
veyor, done  for  the  benefit  of  A., 
cannot  be  given  in  evidence  by  him, 
in  support  of  his  own  claim,  without 
producing  the  authority  under  which 
the  deputy  acted,  yet  the  unauthor- 
ized act  of  the  deputy,  done,  or  at- 
tempted by  the  procurement  of  A. 
may  be  given  in  evidence  by  B.  to 
show  the  invalidity  of  A.'s  title. 
I'nger  v.  Wigi/nis, 331 

9.  Where  a  book,  purporting  to  be  a 
book  of  a  deputy  surveyor,  contain- 
ing his  field  notes  of  a  resurvey,  had 
been  frequently  in  evidence  before 
the  court,  and  three  times  in  the 
very  cause  under  trial,  without  any 
question,  and  no  proof  of  hand- 
writing was  called  for,  but  it  was 
objected  to  on  other  grounds;  held, 
that  it  was  not  error  to  permit  it  to 
be  read  to  the  jury,  without  proof 
that  it  was  the  book  of  the  deputy 
surveyor,  or  of  his  handwriting. 

Ibid. 

10.  Where  the  question  was  upon  the 
validity  of  a  judgment  entered  under 
a  warrant  of  attorney  upon  a  bond 
given  by  a  father  to  his  son,  soon 
after  the  son  became  of  age,  and 
when  the  father  was  about  to  become 
insolvent,  the  alleged  consideration 
of  which  was,  services  rendered  by 
the  son  to  the  father :  held,  that  it 
was  competent  to  the  creditors  of 
the  father,  (on  the  application  of 
whom  the  judgment  had  been  open- 
ed, for  the  purpose  of  letting  them 
into  a  defence.)  to  show,  that  on  a 
sale  by  the  sheriff  of  the  father's 
goods,  the  son  had  claimed,  and  re- 
tained as  his  own  property,  a  num- 
ber of  the  articles  levied  on.  Reiten- 
baeh  v.  Reitenbach, 362 

11.  A  combination  between  the  father 
and  the  son,  to  defraud  the  creditors 
of  'the  father  having  been  proved ; 
held,  thai  it  was  competent  to  the 
creditors  to  give  in  evidence  declara- 
tions by  the  father,  in  the  absence 
of  the  son,  that  the  bond  was  given 
for  the  sole  purpose  of  keeping  off 
creditors,  and  that  it  was  without 
consideration Ibid. 

12.  The  laws  of  another  state,  a  mem- 
ber of  the  Union,  are  to  be  proved  as 


the  laws  of  a  foreign  country.  JBtp- 
ple  and  others  v.  Hippie  and 
others, 386 

13.  The  maxim  omnia  presumuntur  rite 
esse  acta,  is  as  applicable  to  judicial 
proceedings  in  such  a  state,  as  to 
those  in  our  own, Ibid. 

14.  Where  &  fieri  facias  has  lain  in  the 
sherifl's  hands  six  years,  and  is  then 
returned  nulla  bona,  such  return  will 
not  preclude  the  admission  of  evi- 
dence to  contradict  it.  Williams, 
Executor  of  Pennock,  v.  Carr  and  an- 
other,   *.    ...  420 

15.  A  book,  made  up  by  transcribing 
entries,  made  by  a  journeyman  on 
a  slate,  some  of  them  being  trans- 
cribed by  the  journeyman,  and  some 
by  the  party,  some  on  the  same 
evening,  and  others  several  days 
afterwards,  but  all  within  two  weeks, 
is  not  admissible  in  evidence  as  a 
book  of  original  entries,  supported 
by  the  oath  of  the  party.  Kessler  v. 
M'Conaclty, 436 

16.  After  evidence  of  a  fraudulent 
combination,  the  declarations  of  any 
one  of  the  parties  to  it,  may  be 
proved.     Wilbur  v.  Strickland,  .  458 

EXECUTION. 

See  Assize  of  Nuisance,  1,  2,  3. 
Sheriff,  1. 

An  order,  given  by  an  execution  cred- 
itor to  the  sherifT,  to  stay  all  fur- 
ther prooeedings  on  his  execution, 
at  his  risk,  until  further  directions, 
is  a  waiver  of  his  priority,  in  favour 
of  a  second  execution,  received  by 
the  sherifl" during  tlie  continuance  of 
the  stay.    Eberle  v.  Mayer,     .    .  S66 

EXECUTOKS. 
See  Action,  5.    Agreement.    Heib. 

FEES. 
See  Arbitration. 

1.  A  prothonotary,  who  has  received 
one  thousand  five  hundred  dollars 
for  each  year  he  was  in  office,  is 
bound  to  account  for  and  pay  over  to 
the  commonwealth,  fifty  per  cent, 
upon  all  fees  earned  wliile  he  was 
in  oflBce,  and  received  by  his  succes- 
sor, and  paid  over  to  him  after  he  has 
gone  out  of  office.  Commonwealth  v. 
West, ....  29 

2.  But  the  sureties  in  his  official  bond. 


INDEX. 


527 


are  not  liable  in  case  of  his  omission 
to  account  for,  and  pay  over  the 
amount  due  to  the  commonwealth, 
upon  the  fees  thus  received,     .  Ibid. 

FEME  COVERT. 

A  feme  covert  is,  in  respect  to  her  sep- 
arate estate,  to  be  deemed  a  feme 
sole  only  to  the  extent  of  the  power 
clearly  given  by  the  instrument  by 
which  the  estate  is  settled,  and  has 
no  right  of  disposition  beyond  it. 
Lancaster  v.  Dolan, 231 

FIERI  FACIAS. 

See  EvxDENCE,  14. 

FOREIGN  ATTACHMENT. 

See  Attachment,  Foreign. 

FOREIGN  COUNTRY,  LAWS  OF. 

See  Evidence,  12, 13. 

FRAUD. 

See  Assignment,  1.  Evidence,  5, 6, 7, 
10,  11.  Lease.  Purchase,  2,  3, 
Witness,  1. 

1.  To  the  following  propositions: — 1 
That  a  conveyance,  made  with  a 
view  to  defeat  creditors,  is  fraudu- 
lent and  void ;  2.  That  a  debtor  can- 
not give  his  property  to  his  children 
to  the  injury  of  his  creditors ;  3. 
That  a  debtor  cannot  provide  for  the 
maintenance  of  himself  and  his  wife 
out  of  his  property  to  the  injury  of 
his  creditors,  and  every  instrument 
of  writing,  or  conveyance,  for  such 
purpose,  is  void  as  to  creditors;  4. 
That  if  the  jury  were  of  opinion,  that 
the  debtor  had  conveyed  his  prop- 
erty to  his  children  for  the  purpose 
of  preventing  his  creditors  from 
levying  upon  it,  the  conveyance  is 
fraudulent  and  void  as  to  creditors ; 
5.  That  if  the  conveyance  of  the 
debtor  to  his  children  was,  in  the 
opinion  of  the  jury,  for  the  purpose 
of  preventing  his  creditors  from  levy- 
ing on  the  premises,  the  plaintiff 
(who  was  a  purchaser  under  a  judg- 
ment against  the  debtor,  and  brought 
ejectment  to  recover  the  premises,) 
was  entitled  to  recover  in  this  suit — 


it  is  not  sufficient  for  the  court  to  an- 
swer, "  That  no  act,  whatever,  done 
to  defraud  a  creditor,  or  creditors, 
shall  be  of  any  effect  against  such 
creditor    or    creditors."     Geiger   v. 

Wehh  and  others, 349 

2.  If  a  deed  be  made  by  a  parent  to 
his  children,  on  condition,  that  the 
grantees  shall  support  the  grantor 
for  life,  the  consideration  is  a  good 
and  honest  one  between  the  parties 
themselves ;  but,  if  it  be  made  with 
a  view  to  hinder  or  defeat  creditors, 
it  is  fraudulent  and  void  as  respects 
them, Ibid. 

GUARDIAN  AND  WARD. 

Where,  under  the  circumstances,  it 
was  manifestly  for  the  benefit  of  the 
ward,  at  the  time,  to  convert  his 
personal  into  real  estate,  and  even 
to  expend  money  in  the  improvement 
of  the  real  estate,  a  guardian  was 
held  to  be  justifiable  in  so  doing, 
although  subsequent  and  unexpected 
events  rendered  the  measure  inju- 
rious to  the  ward.  Case  of  BonsaJFs 
Appeal,      266 

HEIR. 

If  a  naked  power  to  sell  be  given  to 
executors,  the  land  in  the  meantime 
descends  to  the  heir,  and  an  eject- 
ment may  be  brought  for  it  in  his 
name.  Brown  v.  Dysinger  and  an- 
other,       408 

HUSBAND  AND  WIFE. 

1.  An  assignment  by  a  husband  of  his 
wife's  choses  in  action,  as  a  collateral 
security,  does  not  deprive  her  of  the 
right  of  survivorship,  in  case  he  dies 
before  they  are  reduced  to  possession. 
Hartman  v.  Dowdel, 279 

2.  An  action  on  a  judgment  obtained 
by  husband  and  wife,  for  a  debt  due 
to  the  husband  in  his  own  right, 
should,  after  the  death  of  the  hus- 
band, be  brought  in  the  name  of  the 
wife,  as  surviving  plaintiff,  and  not 
in  the  name  of  the  administrator  of 
the  husband.  But  the  court  will 
protect  the  rights  of  creditors,  and 
others,  who  are  shown  to  be  equi- 
tably interested  in  the  judgment. 
Oihson  y.  Todd,  Administrator  of 
Beale,     . 452 


528 


INDEX. 


3.  An  agreement  by  the  defendant, 
with  the  husband  in  iiis  lifetime,  to 
give  him  credit  in  a  larger  debt, 
which  he  liud  against  him,  is,  if 
executed,  an  extinguishment  of  the 
judgment ;  and  if  not  executed,  it  is 
not  a  reduction  of  the  judgment  into 
possession,  by  the  husband,  .    .  Jbid, 

INCUMBKANCE. 
See  CkjVENANT,  4, 5.    Ejecttment,  4. 

INDICTMENT. 

1.  An  indictment  is  not  vitiated  by 
stating  an  offence  to  have  be'fen  com- 
mitted on  the  first  March  instead  of 
the  first  day  of  March.  Sivimoiis  v. 
The  Commonwealth,  ......  142 

2.  In  an  indictment  for  fornication  and 
bastardy,  an  omission  to  state  the 
sex  of  the  child,  is  fatal,  .    .    .  Ibid. 

INSURANCE. 

1.  The  disappointment  of  a  reasonable 
hope  of  obtaining  a  cargo  for  the 
owner  of  the  vessel  himself,  at  the 
port  to  which  she  is  sailing,  with 
specie  on  board  to  purchase  a  cargo, 
but  where  no  cargo  has  been  pur- 
chased, nor  a  positive  contract  made 
for  the  purchase  of  one,  does  not 
authorize  a  recovery  on  a  valued 
policy  on  freight,  where  the  ship  is 
lost  on  the  voyage  to  the  port  of 
destination.  Adam^  v.  The  Pennsyl- 
vania Insurance  Company,     ...  97 

2.  It  seems,  that  a  gaming  policy  is  not 
good  in  Pennsylvania,  ....  Ibid. 

JOINT  DEBTOR. 
See  Release. 

JUDGMENT. 

See  Husband  and  Wife,  2, 3.  Leg- 
acy, 2.  Prothonotary,  1.  Set- 
off, 2. 

1.  By  recovering  a  judgment  in  tres- 
pass for  carrying  away  the  plaintiff's 
goods,  his  property  in  the  goods  is 
divested.  Consequently,  such  a 
judgment  is  a  bar  to  an  action  of 
indebitatus  assumpsit,  against  any  one, 
for  the  proceeds  of  the  sale  of  the 
goods  which  were  the  subject  of  the 
trespass.  Floyd  v.  Bromi,  Adminis- 
trator of  Ihtxton, 121 


2.  The  possession  of  money  by  the 
sherift,  arising  from  the  sale  of  lands, 
sufficient  to  satisfy  a  judgment  earlier 
than  that  under  which  the  sale  was 
made,  is  not  jyer  se,  a  satisfaction  of 
such  earlier  judgment.  The  prior 
judgment  creditor  may  waive  his 
priority  in  favour  of  a  subsequent 
one,  without  working  an  extinguish- 
ment of  his  judgment,  which  may 
be  satisfied  out  of  any  other  land 
originally  bound  by  it.  And,  if  the 
subsequent  judgment  creditor  be- 
come the  assignee  of  the  first  judg- 
ment, he  succeeds  to  all  the  rights 
of  the  assignor.  Bunk  of  Pennsyl- 
vania, for  the  use  of  Echelman  and 
another,  v.  Winger  and  another,  vdth 
notice,  tfec, 295 

JUSTICE  OF  THE  PEACE. 

See  Appeal.  CotniT,  3.  Landlord 
AND  Tenant,  2.    Restitution. 

LANDLORD  AND  TENANT. 
See  Ejectment,  6. 

1.  To  entitle  a  landlord  to  demand 
from  his  tenant  security  for  the  pay- 
ment of  three  months'  rent,  or  a  sur- 
render of  the  possession  of  the  prem- 
ises, under  the  act  of  the  25th  of 
March,  1825,  it  is  not  sufficient  that 
the  tenant  has  removed  part  of  his 
goods,  without  leaving  sufficient  to 
secure  the  payment  of  three  months' 
rent,  while  he  himself  remains  in 
possession  of  the  premises. ,  Freytag 
V.  Anderson, 73 

2.  To  give  the  justices  jurisdiction 
under  this  act,  the  removal  of  the 
lessee  is  necessary, Ibid. 

8.  The  property  of  a  stranger  found 
upon  the  demised  premises  is  liable 
to  distress  by  the  landlord.  Kessler 
V.  M'Conachy, 435 

4.  In  a  replevin  by  the  stranger,  he 
cannot  call  the  tenant  as  a  witness 
to  prove  no  rent  was  due,     .    .  Ibid. 

6.  The  exemption  of  a  stove,  belong- 
ing to  the  tenant,  from  distress, 
under  the  act  of  the  29th  of  March, 
1821,  is  confined  to  that  which  is 
used  in  his  family,  and  does  not  ex- 
tend to  one  in  his  shop,  apart  from 
his  dwelling-house, Ibid. 

6.  Informalities  in  an  avowry  for  rent 
in  arrear,  are  cured  by  going  on  to 
trial, Ibid. 


INDEX. 


529 


7.  If,  on  the  issue  of  no  rent  in  arrear, 
the  jury  find  for  the  defendant,  but 
omit  to  find  the  value  of  the  goods, 
judgment  of  retorrvo  habendo  may  be 
entered, i    ...  Ibid. 

8.  Eviction  of  the  tenant  by  the  land- 
lord, has  no  operation  on  rent  al- 
ready due :  it  suspends  the  rent  of 
the  month,  quarter,  or  other  por- 
tion of  time  running  on  at  the  time 
of  eviction,      Ibid. 

9.  If,  after  a  distress,  made  on  the 
goods  of  a  stranger,  the  tenant  ob- 
tains a  judgment  of  a  justice  of  the 
peace  in  his  favour,  in  a  proceeding 
under  the  act  of  the  20tli  of  March, 
1810,  to  compel  the  landlord  to  de- 
falcate the  tenant's  just  account,  the 
stranger,  having  taken  out  a  writ  of 
replevin,  may  use  this  judgment  as 
prima  facie  evidence  on  the  issue  of 
no  rent  in  arrear, Ibid. 

LEASE. 

A  lease,  unfairly  obtained  from  a  party 
in  possession  of  the  land,  will  not 
prevent  the  lessee  from  contesting 
the  title  of  the  lessor.  Brown  v. 
Dysinger  and  another, 408 


LEGACY. 

1.  Testator  directed  his  real  estate  to 
be  sold  by  his  executors,  and  that 
when  sold  and  the  money  col- 
lected, they  should  pay  all  his  just 
debts  and  all  the  just  debts  of  his 
son  L.,  contracted  up  to  the  date  of 
the  will,  but  none  that  he  might  con- 
tract after  the  date.  He  then  directed 
that  Iiis  wife  should  have  and  en- 
joy all  his  estate,  real  and  personal, 
during  her  life,  and  that  at  her  death, 
one  moiety  should  be  left  at  her  own 
disposal.  The  other  moiety  he  di- 
rected to  be  put  out  at  interest  for 
the  use  and  benefit  of  his  son  L., 
for  him  to  receive  the  interest  of  the 
same  annually  during  his  natural 
life ;  and  at  his  decease,  the  princi- 
pal and  interest  of  the  same,  to  be 
at  his  own  disposal.  The  wife  sur- 
vived the  testator  and  died  intestate. 
The  son  L.  survived  his  father  and 
mother,  and  died  intestate,  leaving 
the  plaintiff,  his  only  child  : 

Held,  that  after  the  death  of  the  widow, 
without  appointment,  one  half  of  the 
estate  vested  absolutely  in  the  son 
VOL.  I. — 34 


L.  as  next  of  kin,  and  was  liable  to 
his  debts;  and  that  as  to  the  other 
half,  it  went  to  the  son  L.  for  life, 
and  after  his  death,  without  appoint- 
ment, to  the  plaintiff  as  next  of  kin 
of  the  testator,  and  was  not  liable  to 
the  debts  of  the  testator's  son  L. 
Thomas    v.    Thomas,     Executor     of 

Thomas, 112 

2.  Where  several  legacies  are  charged 
upon  land,  which  is  sold  under  a 
judgment  obtained  by  one  of  the 
legatees,  but  proves  insufficient  to 
pay  all  the  legacies,  the  legatee  who 
instituted  the  first  suit,  and  obtained 
the  first  judgment  and  execution, 
gains  no  preference  thereby ;  but 
the  proceeds  must  be  distributed 
pro  rata  among  all  the  legatees. 
Otly  and  Wife  v.  Ferguson,  Executor 
ofShuey 294 

LEGATEE. 
See  Witness,  5. 

LEVARI  FACIAS. 
See  Sheriff,  2. 

LEVY. 

See  Sheriff's  Sale  2. 

LIMITATIONS,  ACT  OF. 

1.  The  act  of  March  27th,  1713,  for  the 
limitation  of  actions,  is  not  a  bar  to 
the  recover}^  of  rent  reserved  by  in- 
denture.    Davis  V.  Shoemaker,  .  135 

2.  Under  the  plea  of  nil  debet  to  a 
declaration  stating  a  demise  gener- 
ally, the  defendant  may  give  the 
statute  of  limitations  in  evidence. 
(Semble), Ibid. 

MARRIAGE  SETTLEMENT. 

See  Feme  Covert.    Power. 

1.  A.  and  B.,  in  contemplation  of  mar- 
riage, executed  a  deed,  by  wliich  a 
large  real  estate,  being  thewife's  share 
and  proportion  of  her  late  father's 
real  estate,  was  conveyed  to  trustees 
upon  certain  trusts  for  her  benefit, 
and  in  reference  to  a  considerable 
personal  property,  "  being  her  share 
of  the  personal  estate  of  her  late 
father ; "  the  husband  covenanted, 
that  all  the  purchases  of  real  estate 
he  might  make,  with  the  above  men- 


530 


INDEX. 


tioned  personal  property  of  the  wife, 
which  should  come  to  his  Imnds  dur- 
ing the  intended  marriage,  should  be 
vested  in  the  wife,  subject  to  certain 
powers  in  the  Jiusband ;  and  that  if,' 
at  the  time  of  her  decease,  he  should 
be  in  possession  of  any  of  the  per- 
sonal property  of  the  wife,  received 
from  the  estate  of  her  late  father, 
not  contracted  to  be  laid  out  in  real 
estate,  he  would  account  to  the  trus- 
tees for  the  principal  thereof ;  it  be- 
ing understood  tliat  he  should  not 
be  acco\mtable  for  the  interest  or 
rent  of  any  such  moneys  or  estates 
as  might  come  into  his  hands  during 
their  joint  lives. 
On  the  day  before  the  execution  of  the 
settlement,  a  part  of  the  real  estate 
was  sold ;  part  of  the  purchase- 
money  was  paid,  and  bonds  given  by 
the  purchaser  for  the  residue,  which 
were  paid  off  after  the  marriage,  but 
no  alteration  was  made  in  the  deed 
in  consequence  of  the  sale. 

The  husband,  after  the  marriage,  re- 
ceived considerable  sums  of  money 
from  the  executors  of  the  wife's 
father,  part  of  which  consisted  of 
interest  which  had  become  due  to 
thafestate  after  the  date  of  the  mar- 
riage settlement. 

Part  of  the  wife's  personal  estate  was 
laid  out  by  the  husband  in  the  pur- 
chase of  vacant  lots,  which  were 
conveyed  as  directed  by  the  settle- 
ment, and  he  expended  considerable 
sums  of  money  in  filling  up  these 
lots,  and  curbing  and  paving  in 
front  of  them. 

After  the  wife's  death,  the  executors  of 
the  surviving  trustee  brought  an  ac- 
tion of  covenant  upon  the  settle- 
ment, against  the  husband;  and  it 
was  held, 

That  the  proceeds  of  the  real  estate 
sold  before  the  execution  of  the  set- 
tlement, did  not  pass  to  the  trustees, 
in  the  place  of  the  land  itself. 

That  the  husband  was  not  bound  by 
his  covenant,  to  account  to  the  trus- 
tees for  the  proceeds  of  the  sale. 

That  he  was  not  bound  to  account  for 
moneys  received  from  the  executors 
of  the  wife's  father,  in  the  shape  of 
interest  which  had  accrued  subse- 
quently to  the  date  of  the  settle- 
ment ;  and  that  he  was  entitled  to 
credit  for  the  expense  of  filling  up 
vacant  lots  purchased  in  pursuance 
of  the  settlement,  and  for  curbing  and 


paving  in  front  of  them.    BiddUt 
Executors  v.  Ash 78 


MILITIA. 

1.  The  officer  who  executes  a  warrant 
for  the  collection  of  militia  fines,  is 
not  bound  to  know  that  the  person 
on  whom  he  is  directed  to  execute  it 
is  an  exempt.    Fox  v.  Wood,  .    .  143 

2.  If  the  minutes  of  the  proceedings 
of  a  Court  of  Appeals  are  lost,  the 
substance  of  their  contents  may  be 
proved.  Consequently,  a  warrant 
proved  to  have  been  copied  from  the 
return  of  a  Court  of  Appeals  and 
compared  with  it,  is  competent  evi- 
dence to  be  left  to  the  jury,    .   Ibid. 

3.  To  show  that  a  Court  of  Appeals 
was  regularly  constituted,  it  is  nec- 
essary to  produce  the  commission 
of  the  officer,  by  whose  order  it  was 
constituted,  and  those  of  the  ofiicers 
who  composed  it, Ibid. 

MORTGAGE. 

See  Power.    Sheriff,  2. 

The  interest  of  a  mortgagee,  whether 
the  mortgage  be  equitable  or  legal, 
cannot  be  taken  in  execution.  Bickert 
V.  Madeira, 326 

MOETGAGEE. 
See  Purchaser,  1.  Mortgage. 

NOTICE. 

SeePR0MISS0RYN0TE,2.  PXJRCHASEE, 

3.    Will,  2. 

NUISANCE. 
See  Damages,  1. 

OFFICIAL  BOND. 
See  Fees,  2.    Pbothonotaby,  2,  8. 

OFFICER. 

1.  The  secretary  of  the  Union  Canal 
Company  of  Pennsylvania,  incorpo- 
rated by  the  act  of  the  2d  of  April, 
1811,  was  such  an  officer,  within  the 
meaning  of  the  supplemental  act  of 
the  29th  of  March,  1819,  as  the  legis- 
lature intended  should  receive  no 
salary  until  the  works  were  actually 


INDEX. 


531 


recommenced  upon  the  canal.  Ehren- 
zeller  v.  The  Union  Canal  Company, 

181 
2.  Such  an  officer  can  claim  no  com- 
pensation for  services,  upon  a  quan- 
tum meruit, Ibid. 

ORPHANS'  COURT. 

See  Cebtiorari,  1.  Administration 
Account. 

PAROL  EVIDENCE. 
See  Demurrer  to  Evidence,  2,  3. 

1.  Parol  evidence  is  not  admissible  to 
prove  the  reservation  of  a  right  of 
way,  which  is  not  reserved  by  or 
noticed  in  the  deed.  Collam  v.  Mar- 
ker,     108 

2.  Parol  evidence  of  declarations,  made 
by  a  purchaser  at  sheriff's  sale,  that 
he  was  bidding  for  another,  is  admis- 
sible to  establish  a  trust  for  the  per- 
son for  whom  the  purchaser  declared 
he  was  bidding.    Brown  v.  Dyainger, 

408 
PARTNERS. 

1.  Though  in  an  action  against  the  rep- 
resentatives of  a  deceased  partner, 
the  insolvency  of  the  surviving  part- 
ner be  not  satisfactorily  proved,  yet 
if  it  be  sworn  to,  and  the  defendant 
demur  to  the  evidence,  it  must  be 
taken  as  i)roved.  CaldwtU.  Adminis- 
trator of  Caldwell,  surviving  partner  of 
Holmes  y.  Stileman, 212 

2.  If  a  contract  be  made  with  a  firm, 
to  do  a  certain  piece  of  work,  which 
is  not  finished  until  after  the  death 
of  one  of  the  partners,  the  estate  of 
that  partner  is  liable,  provided  the 
surviving  partner  be  insolvent,  Ibid. 

PAUPERS. 
See  Ejectment,  6. 

PAYMENT. 
See  Pleading,  2. 

PHILADELPHIA  BANK. 
See  Promissory  Note,  3. 

PLEADING. 

See  Limitations,  Act  of.  Landi^ord 
AND  Tenant,  6. 

1.  In  an  action  of  debt  for  rent  reserved 
by  indenture,  the  plaintiff  may  state 


in  his  declaration  the  substance  of 
the  demise,  and  is  not  bound  to  de- 
clare upon  the  deed ;  and,  if  to  such 
a  declaration  the  defendant  pleads 
nil  hahuit  in  tenementis  ;  actio  non  ac- 
erevit  infra  sex  annos,  or  any  plea 
which  is  prima  facie  a  good  plea,  no 
estoppel  appearing  on  the  record,  the 

Elaintiff  may  reply  that  the  lease  was 
y  indenture,  and  such  a  replication 
will  not  be  a  departure.     Davis  v. 

Shoemaker, 135 

2.  The  plea  of  payment,  with  leave, 
&c.,  does  not  admit  the  truth  of  all 
the  averments  in  the  narr,  or  state- 
ment. It  admits  nothing  but  the  ex- 
ecution of  the  instrument  on  which 
the  suit  is  founded,  and  what  is  ad- 
mitted by  the  general  issue  in  every 
action.  It  is  a  special  or  general 
defence,  as  the  notice  given  under  it 
makes  it  one  or  the  other.  Hoop  v. 
Brubacker, 304 

POWER. 

See  Heir. 

A  power  to  appoint  by  any  writing  in 
the  nature  of  a  will  or  other  instru- 
ment, under  hand  and  seal,  executed 
in  the  presence  of  two  credible  wit- 
nesses, is  well  executed  by  a  mort- 
gage, though  it  contain  no  reference 
to  the  power.     Lancaster  v.  Uolan, 

231 

POWER  OF  ATTORNEY. 
See  Discontinuance,  1 


PRACTICE. 

See    Certiorari.     Landlord  and 
Tenant,  6. 

PRESUMPTION. 

See  Assignment,  2.    Covenant,  6. 

1.  The  lapse  of  twenty -four  years, 
though  without  proof  of  inquiry,  or 
other  circumstances,  is  sufficient  to 
warrant  the  presumption  of  tlie  death 
of  a  person  of  whom  nothing  has 
been  heard  for  that  length  of  time. 
Jnnis  and  others  v.  Camplxll  and 
others, 373 

2.  Not  havintr  been  heard  of  for  seven 
years  is  sufficient  to  rebut  the  pro- 
sumption  of  life, Ibid. 


632 


INDEX. 


PKOMISSORY  NOTE. 

1.  When  a  promissory  note  is  payable 
at  a  particular  place,  such  as  a  bank, 
and  on  a  particular  day,  and  the  in- 
dorsee is  at  the  bank  until  it  closes, 
at  the  usual  hour,  on  the  day  on 
which  the  note  falls  due,  ready  to 
receive  payment,  no  further  demand 
on  the  drawer  is  necessary,  in  order 
to  charge  the  indorser.  liahm,  Ex- 
ecutor Qj  Kapp,  V.  The  Philadelphia 
Bank, 335 

2.  Verbal  notice  to  the  indorser,  of 
non-payment  by  the  drawer  is  suf- 
ficient,   Ibid. 

3.  The  act  of  assembly  incorporating 
the  Philadelphia  Bank,  by  the  terms 
of  which,  notes  discounted  by  that 
bank,  are  placed  on  the  same  footing 
as  foreign  bills  of  exchange,  does  not 
render  a  protest  and  notice  thereof  to 
the  indorser  necessary,  in  order  to 
charge  him, Ibid. 


PROTEST. 
See  Pkomissoky  Note,  3. 

PEOTHONOTAEY. 
See  Fees,  1,  2. 

1.  A  prothonotary  complies,  substan- 
tially, with  the  directions  of  the  act 
of  assembly  of  the  24th  of  February, 
1806,  when,  in  entering  judgment  on 
a  bond  with  warrant  of  attorney, 
upon  the  application  of  the  party,  he 
enters  on  his  docket  the  names  of 
the  obligor  and  obligee,  in  the  form 
of  an  action,  as  parties ;  the  date  of 
the  bond  and  warrant  of  attorney ; 
the  penal  sum ;  the  real  debt ;  the 
time  of  entering  the  judgment,  and 
the  date  of  tlie  judgment  on  the 
margin  of  the  record.  The  Common- 
wealth, f<>r  the  use  of  Black,  v  Covard 
and  another, 249 

2.  An  omission  by  the  prothonotary  to 
enter  on  the  record  a  stay  of  execu- 
tion provided  for  in  the  warrant  of 
attorney,  is  not  such  a  neglect  of 
duty  or  mistake  in  the  prothonotary, 
as  will  work  a  forfeiture  of  his  of- 
ficial bond,  and  make  him  liable  to 
the  party  for  the  amoimt  due  upon 
his  judgment, Ibid. 

3.  A  prothonotary  who  wilfully  neg- 
lects any  duty  is  liable  upon  his  of- 
ficial bond  to  any  one  who  may  be 
thereby  injured, Ibid. 


PUBLIC  ACCOUNTS. 
See  Tbeasubeb.    Stjfebvisobs,  4. 


PURCHASER. 

See  Action,  6.  Certiobabi,  2.  Parol 
Evidence,  2.  Sheriff's  Sale,  1, 
2,  3.    Will,  1,  2. 

1.  A  mortgagee  is  a  purchaser  within 
the  intent  of  the  Stat.  27  Eliz.  ch.  4. 
Lancaster  v.  iJolan, 231 

2.  In  Pennsylvania  a  voluntary  con- 
veyance is  not  void  against  a  subse- 
quent purchaser,  by  force  of  the  Stat. 
27  Eliz.  ch.  4,     .  • Ibid. 

3.  Under  the  act  of  assembly  of  the 
18th  of  March,  1776,  a  voluntary 
deed,  duly  recorded,  is  as  valid 
against  a  subsequent  purchaser,  as  a 
deed  for  a  valuable  consideration, 
provided  it  be  untainted  by  actual 
fraud, Ibid. 

4.  In  a  proceeding  under  the  act  of  6th 
of  Ai)ril,  1802,  to  obtain  possession 
of  land  purchased  at  sherifl's  sale,  if 
the  inquest  find  that  A.  B.  was  the 
defendant  whose  land  was  sold  ;  that 
he  was  in  possession  at  the  time,  and 
that  the  purchaser  gave  notice  to 
him,  and  to  C.  D.  and  E.  F.,  his  ten- 
ants, it  is  a  sufficient  finding  of  the 
possession  of  the  debtor,  and  that 
those  who  are  said  to  be  his  tenants, 
came  into  possession  under  him. 
Cooke  v.  Reinhart, 317 

5.  It  is  enough  if  the  inquest  find,  that 
the  purchaser  gave  due  and  legal 
notice,  without  expressly  finding, 
that  three  months'  notice  was  given 
prior  to  the  application  to  the  jus- 
tices,      Ibid. 


QUANTUM  MERUIT. 

See  Officer,  2. 

RECEIPT. 

See  Release. 

RECORD. 
See  CoTiBT,  3.    Shebiff's  Sale,  4. 

RECORDING  ACT. 
See  PuBCHASEB,  3. 


INDEX. 


533 


KELEASE. 

See    Administration    Account,  3. 
Evidence,  5,  6. 

A  receipt,  not  under  seal,  to  one  of 
several  joint  debtors,  for  his  propor- 
tion of  the  debt,  discharges  the  rest. 
Milliken  and  another  v.  Brown,  .  391 

KENT. 
See  Landlord  ajid  Tenant. 

RENT  CHARGE. 

See  Action,  6, 7.    Covenant.    Sher- 
iff's Sale,  2. 


EEPLEVIN. 

See  Landlord  and  Tenant,  3,  4,  5, 
6.7. 


RE-EESTITUTION. 

Where  this  court  reversed  thejudgment 
of  the  Court  of  Common  Pleas,  who 
had  reversed  the  proceedings  of  two 
justices,  under  the  act  of  the  6th  of 
April,  1802,  and  awarded  restitution 
of  the  land  to  the  defendants,  a  writ 
of  re-restitution  to  the  complainants 
was  awarded.      Cooke   v.   Remhart, 

317 

RESERVATION. 

1.  Time  does  not  begin  to  run  against 
a  privilege  reserved  in  a  deed,  until 
some  default,  negligence,  or  acquies- 
cence is  shown,  or  may  be  fairly  pre- 
sumed, in  the  party  in  whose  favour 
such  reservation  is  made.  Butz  v. 
Ihrie, 218 

2.  Therefore,  a  reservation  of  a  riglit 
for  the  grantor,  his  heirs  and  assigns, 
to  raise,  swell  and  dam  the  water  of 
a  stream,  from  a  dam  intended  to  be 
built  on  his  own  land,  provided  the 
same  is  not  raised  or  swelled  so  high 
as  to  injure  and  damage  the  mill 
granted  by  the  deed,  is  not  barred, 
forfeited,or  lost  by  the  lapse  of  thirty- 
two  years,  from  the  time  the  right 
was  reserved,  to  the  timeof  building 
the  dam  in  pursuance  of  that  right. 

Ibid. 

3.  Though  the  words  of  the  deed  be 
"a  dam,"  &c.,  yet  the  substance  oi 
the  reservation  is  of  a  privilege  to 
overflow  the  land,  without  injuring 
the  grantor's  mill ;  and  whether  this 


be  done  by  one  dam  or  by  more  than 
one,  is  not  essential Ibid. 

RIGHT  OF  WAY. 
See  Parol  Evidence,  1. 

SALARY. 
See  Officer. 

SET-OFF. 

1.  The  assignee  of  the  assignee  of  a 
bond,  takes  it  subject  to  all  the  equi- 
ties existing  at  the  time  of  the  assign- 
ment, between  the  obligor  and  the 
first  assignee,  notwithstanding  such 
equities  may  have  arisen  before  tlie 
bond  came  into  the  hands  of  the  first 
assignee.  Metzgar,for  the  use  of  Uhler 
and  another,  v.  Metzgar,  .    .     •   .  227 

2.  A  judgment  may  be  set  oft  before  a 
jury,  against  a  demand  not  ascer- 
tained by  judgment,  Ibid. 

3.  Mutual  demands  extinguish  each 
other  by  operation  of  law,  without 
actual  defalcation  by  the  act  of  the 
parties.  Commonwealth  v.  Clarkson, 
Administrator  of  Passnwre,  .    .    .  291 

4.  Therefore,  where  a  prothonotary  and 
a  sheriff'  received  fees  for  each  other 
during  their  continuance  in  office, 
the  fees  received  by  the  prothonotary 
for  the  sheriff",  against  which  he  was 
entitled  to  set-off"  money  received  by 
the  sheriff"  for  him,  were  held  to  have 
been  fees  received  by  the  prothono- 
tary while  in  office,  and  liable  to 
taxation  under  the  act  of  the  10th  of 
March,  1810,  although  no  actual  set- 
tlement of  accounts  took  place  be- 
tween them  until  long  after  the  pro- 
thonotary had  gone  out  of  office. 

Ibid. 

5.  An  agent  of  a  corporation,  who  has 
received  money  for  its  use,  cannot, 
in  an  action  for  money  had  and  re- 
ceived, brought  against  him  by  the 
corporation,  prove,  by  way  of  set-off", 
that  he  has  paid  the  debts  of  the  cor- 
poration, without  showing  a  special 
authority  for  that  purpose.  And  it 
is  not  enough  to  prove,  that  the  de- 
fendant acted  for  the  trea-surer,  with- 
out showing  some  resolution  of  the 
board,  giving  the  treasurer  a  right  to 
delegate  his  power  to  the  defendant. 
Middletown  and  Harrisburg  I'urnpike 
Road  Company  v.  WalMu,  Adminis- 
tratrix of  Watso7^, 330 


534 


INDEX. 


SHERIFF. 
See  Judgment,  2, 

1.  If  the  sheriff  misapjjly  money  that 
comes  into  his  hands,  by  paying  one 
execution,  with  the  proceeds  of  prop- 
erty sold  under  another,  the  party 
who  receives  the  money,  is  not  bound, 
provided  he  has  acted  fairly,  to  re- 
fund it,  either  to  the  sheriff"  or  to  the 
party  whose  money  has  been  im- 
properly paid  away.  It  is  not  neces- 
sary, on  receiving  a  payment  from 
the  sheriff,  to  inquire  out  of  what 
fund  it  is  made.  IHechman,  Admin- 
istrator of  SmuU,  V.  The  Northampton 
Bank, 54 

2.  The  sheriff  is  not  justified  in  selling, 
under  a  levari  facias,  grain  growing 
on  the  mortgaged  premises.  And  if 
he  does  so,  the  party  to  whom  the 
grain  belongs,  may  maintain  an  ac- 
tion of  trespass  qnare  datixum  fregit 
against  the  sheriff,  though  not  in 
actual  possession  of  the  land.  Myers 
and  another,  Assiynees  of  Myers,  \. 
White, 353 

3.  Such  party  is  not  estopped  from  con- 
testing tlie  validity  of  the  sale,  in 
consequence  of  having  received  from 
the  slieriffthe  balance  in  his  hands, 
after  payment  of  the  mortgage.  Ibid 

4.  A  sheriff  is  answerable  for  the  con- 
duct of  his  deputy  in  taking  goods 
of  another  person  than  the  defendant, 
in  execution.     Wilbur  v.  Strickland, 

468 

SHERIFF'S  DEED. 

See  Sheriff's  Sale,  1. 

A  difference  between  the  sheriff's  deed, 
and  the  levy,  venditioni  rxponas,  and 
conditions  of  sale,  in  stating  the  num- 
ber of  acres  contained  in  a  tract  of 
land,  is  unimportant.  Arnold  and 
another  v.  G(/rr  and  another,  .    .  223 

SHERIFF'S  SALE. 

See  Certiorari,  2.  Evidence,  4. 
Ejectment,  1.  Parol  Evidence, 
2.  Purchaser,  2,  3.  Sheriff's 
Deed.    Sheriff. 

1.  It  is  no  objection  to  the  validity  of 
the  title  of  a  purchaser  at  sheriff's 
sale,  that  the  venditioni  exponas  was 
not  returned  until  long  after  the  ac- 
knowledgment of  the  sheriff's  deed, 
and  long  after  the  eheriflwho  made 


the   sale,  had   gone  out  of  office. 

SmiUl  V.  Mitkley  and  a-mdher,   .    .  96 

2.  Generally,  the  levy  on  real  estate 
will  control  all  the  subsequent  pro- 
ceedings. Therefore,  if  the  levy  be 
upon  a  rent  charge  and  the  venditioni 
exponas,  alias  venditioni  exTonus,  &c., 
command  the  sheriff  to  sell  the  rent 
charge,  but  he  advertised  the  lot  upon 
which  it  is  charged,  and  make  a  deed 
to  the  purchaser,  purporting  to  con- 
vey the  lot,  and  no  application  be 
made  to  set  aside  the  sale  at  the 
proper  time,  by  those  authorized  to 
object  to  it,  the  rent  charge  pa-sses  to 
the  purcha&er.  Streaper  v.  Fisher 
and  others, 166 

3.  A  defendant  whose  property  has 
been  sold  by  the  sherifij  ciinnot  de- 
feat the  purchaser  in  obtaining  pos- 
session, by  connecting  himse.f  with 
one  who  may  have  a  good  title.  Ar- 
nold and  another  v.  Gorr  and  another, 

223 

4.  A  judgment  was  confes.sed  before  a 
justice  of  the  peace  on  the  11th  of 
August,  1823,  for  a  sum  exceeding 
one  hundred  dollars.  A  transcript 
of  this  judgment  was  filed  in  the 
Court  of  Common  Pleas,  on  the  20th 
of  the  same  month.  The  plaintiff 
afterwards  took  out  an  execution 
from  the  justice,  which  was  re- 
turned— "  No  goods  could  be  found 
to  satisfy  the  demand :"  a  certifi- 
cate to  which  eflect  was  carried 
to  the  prothonotary's  office,  to- 
gether with  a  praeeifie  for  Sifierifactas, 
on  the  7th  of  April,  1824.  The  pro- 
thonotary,  instead  of  filing  this  cer- 
tificate with  the  transcript  already 
filed,  filed  and  docketed  it  as  a  new 
transcript,  and  marked  the  exe<'ution 
as  having  issued  upon  it :  Held,  that 
all  these  proceedings  nnist  be  taken 
together,  us  constituting  one  whole, 
and  that,  therefore,  they  were  regu- 
lar. But  if  they  were  not  so,  they 
could  not  be  inquired  into  collater- 
ally, the  remedy  being,  if  any  error 
actually  existed,  by  motion  to  the 
Common  Pleas,  before  the  slieriffs 
deed  is  acknowledged;  and  it  makes 
no  difference  whether  the  jmrchaser 
at  sherifTs  sale  is  the  plaintiff  in  the 
execution  or  a  stranger,   .    .    .  Ibid. 

STOPPAGE  IN  TRANSITU. 

If  goods  are  shipped  on  credit,  in  a  for- 
eign port,  on  board  the  consignee's 


INDEX. 


535 


own  ship,  the  master  of  which  signs 
a  bill  of  lading,  by  which  they  are 
to  be  delivered  to  his  owner,  the 
transitus  is  at  an  end  by  delivery  to 
the  master ;  and  tlie  consignor  can- 
not afterwards  stop  the  goods,  in 
case  of  the  insolvency  of  the  con- 
signee before  their  arrival.  Bolin  and 
others  v.  lluffnayle.  Consignee,  &c.,   9 

SUPEKCARGO. 
See  Action,  1. 


SUPERVISORS. 

1.  A  suit  cannot  be  maintained  by  the 
supervisors  of  tlie  roads,  after  they 
have  gone  out  of  office,  against  the 
county  treasurer,  upon  an  oi'der 
drawn  on  him  by  the  commissioners, 
in  favour  of  the  supervisors,  or  their 
successors  in  office.  Willard  v.  Par- 
ker and  another, 448 

2.  It  seems,  however,  that  if  the  super- 
visors had  worked  upon  the  roads,  to 
the  amount  of  tlie  order,  or  had  paid 
others  for  their  labour,  they  might 
have  acquired  such  an  interest  in  the 
order  as  would  have  enabled  them  to 
sustain  a  suit  for  their  own  use,  Ibid. 

3.  Where  the  treasurer  has  received 
money  due  for  road  taxes,  he  is  bound 
to  pay  it  to  the  supervisors ;  and  has 
no  right  to  make  payments  in  county 
orders,      Ibid. 

4.  The  mode  of  proceeding,  on  the 
part  of  the  supervisors,  pointed  out 
by  the  fourth  section  of  the  act  of  the 
6th  of  April,  1802,  prescribing  the 
manner  of  settling  their  accounts, 
must  be  strictly  pursued,      .    .  Ibid. 

SURETY. 
See  Fees,  2. 


TENDER. 

1.  A  tender  of  money  in  behalf  of  an 
infant,  made  by  his  uncle,  the  father 
being  dead,  but  the  mother  living; 
held  to  be  good,  altliough  the  uncle 
had  not  then  been  appointed  guar- 
dian.  Brown  v.  Dysinger  and  another, 

408 

2.  A  tender,  partly  in  silver  coin,  and 
partly  in  bank  notes,  offered  to  be 
converted  into  silver,  but  the  oppo- 


*site  party  refusing  to  accept  any 
money,  held  to  be  good,   .    .    .  Ibid. 

TIME. 
See  Assignment,  1.    Covenant  Res- 
ervation, 1,  2. 

TREASURER. 

See  Supervisors,  1,  2,  3. 

Under  the  provisions  of  the  act  of  the 
30th  of  March,  1811,  to  amend  and 
consolidate  the  several  acts  relating 
to  the  settlement  of  public  accounts, 
&c.,  it  is  not  necessary  that  an  ac- 
count should  be  revised  and  ex- 
amined by  the  state  treasurer  in  per- 
son. It  may  may  be  done  by  deputy. 
Commonwealth  v.  Aurand,    .    .    .  282 

TRESPASS. 
See  Judgment.    Sheriff,  2. 

TRUST. 
See  Parol  Evidence,  2. 

TRUSTEE. 
See  Action,  4,  5. 

UNION  CANAL  COMPANY. 

See  Officer,  1,  2.    Constitution. 

USURY. 

See  Witness,  3. 

VENDITIONI  EXPONAS. 
See  Sheriff's  Sale. 

VOLUNTARY  DEED. 
See  Purchaser,  2,  3. 

WAGER. 

,  No  wager  concerning  any  human 
being,  is  recoverable  in  a  Court  of 
Justice.     Phillips  v.  Ives,  ....  36 

,  Therefore,  a  wager,  whether  or  not 
Napoleon  Bonaparte,  would,  within 
a  specified  time,  be  removed  or  es- 
cape from  the  island  of  St.  Helena, 
was  held  to  be  illegal  and  void, 

Ibid. 


636 


INDEX. 


WAGER  POLICY. 
See  Insurance,  2. 

WAIVER. 

See  Execution. 
WARRANT  AND  SURVEY. 

1.  It  seems,  that  the  ninth  section  of 
the  act  of  the  8th  of  April,  1785,  re- 
quiring that  survey  should  be  made 
after  the  warrants  are  delivered  to 
the  deputy  surveyor,  is  not  confined 
to  the  purchase  made  of  the  Indians 
in  1784.   Barton  and  others  v.  Smith, 

403 

2.  Independently,  however,  of  legisla- 
tive enactment,  a  survey  made  pre- 
viously to  a  warrant,  is  void ;  and  is 
not  rendered  valid  by  the  receipt  of 
the  purchase-money  and  acceptance 
of  the  survey, Ibid. 

WILL. 
See  Legacy.    Witness,  5. 

1.  Although  land  devised  is  not  ex- 
pressly charged  with  the  mainte- 
nance of  infirm  children  of  the  testa- 
tor, yet,  if  such  an  intention  can  be 
clearly  collected  from  all  the  parts 
of  the  will,  considered  in  reference 
to  the  testator's  circumstances,  the 
charge  will  attach  upon  the  land, 
and  follow  it  into  the  hands  of  sub- 
sequent purchasers.  Hippie  and 
others  v.  Ripple  and  others,  .    .    .  386 

2.  What  is  sufficient  notice  of  such  a 
charge  to  affect  subsequent  pur- 
chasers,     Ibid. 

8.  The  words  "any  earthly  property,'' 
in  a  will,  if  they  appear  from  the 
context  not  to  have  been  intended  to 
include  real  estate,  will  be  confined 
to  personal  property.  Br(ywn  v. 
Dyainger  and  another, 408 

WITNESS. 

1.  A  party  to  a  fraud  is  competent  to 
prove  it.    Langer  v.  Felton,   .   .  141 


2.  In  an  action  against  the  indorserof 
a  promissory  note,  the  drawer,  to 
whom  the  defendant  has  executed  a 
release,  is  not  incompetent  as  a  wit- 
ness for  the  defendant,  on  the  ground 
of  interest,  though  he  has  given  to 
the  indorser  a  judgment  and  mort- 
gage, to  secure  him  against  the  in- 
dorsements.    Griffith  V.  lieford,  196 

3.  But  he  is  incompetent,  (on  the 
ground  that  a  witness  cannot  im- 
peach a  writing  he  has  given,)  to 
prove  that  the  consideration  of  the 
note  was  usurious ;  that  the  indor- 
see was  in  fact  the  lender,  and  that 
the  security  was  put  into  a  negotia- 
ble form,  merely  for  the  sake  of  con- 
venience,       Ibid. 

4.  Where  it  did  not  appear  how  long 
the  defendant  in  an  ejectment  had 
been  in  possession  of  the  land  in  dis- 
pute, a  lessee  of  the  plaintiff,  under 
an  old  lease,  who  had  probably  been 
out  of  possession  twenty  years  or 
more,  and  against  whom  no  suit  had 
been  brought,  was  held,  in  the  ab- 
sence of  further  evidence  to  presume 
liability  for  mesne  profits,  not  to  be 
incompetent  as  a  witness  for  the 
plaintiff',  on  the  ground  of  interest, 
linger  v.  Wiggins, 331 

5.  A  legatee  who  has  assigned  his  in- 
terest imder  the  will  to  another  per- 
son, is  a  competent  witness  to  prove 
the  will,  although  the  consideration 
of  the  assignment  is  a  bond  for  a 
given  sum,  payable  to  him  at  a 
future  day.  M'llroy  and  another  v. 
M' Ilroy  and  another, 433 

WRIT  OF  ERROR. 

See  Circuit  Court.  Certiorari,  2,  3. 

No  writ  of  error  lies  to  the  opening  of 
a  judgment  to  the  court  below.  It 
is  a  matter  depending  on  the  sound 
discretion  of  that  court,  who  are  not 
prevented  by  lapse  of  time,  from 
affording  relief.  Kalbach,  for  the  iise 
of  Reber,  v.  Fisher, 323 


END  OF  VOL.  I. 


LAW  LrenARY 

UNIVERSITY  OF  CALIFORNIA 
^  LOS  ANGELES 


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